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PEACTICAL  TREATISE 

or    THE 

LAW  OF  EVIDENCE. 


By  THOMAS  STARKIE,  Esq., 

OF     THE     INNER     TEMPLE,     ONE     OF     HER     MAJESTY'S     COUNSEL. 


^Ite  ^m\n  ^mman  Umx  tbe  Jourtlt  g^autlou  (^rtition, 

BY 

DOWDESWELL   and   MALCOLM, 

OF    THE    INNER    TEMPLE,    BARRISTERS-AT-LAW. 


WITH    THE    NOTES    TO    FORMER    AMERICAN    EDITIONS, 

By    METCALF,    INGRAHAM    and    GERHARD. 

AND  ADDITIONAL  NOTES  AND  EEFEEENCES  TO  AMERICAN  OASES, 

By   GEORGE   SHARSWOOD. 


PHILADELPHIA : 

T.   &   J.   W.   JOHNSON   &   CO., 

LAW  BOOKSELLERS,  PUBLISHERS  AND  IMPORTERS, 
No.  535  CHESTNUT  STREET. 

1876. 


T 


Entered  according  to  Act  of  Congress,  in  the  year  1876, 

BY  T.  &  J.  W.  JOHNSON  &  CO. 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


9  (L 


HENIIV     B.     ASIIMKAD,     PRINTER, 
1102  and  1104  Saiisom  Street. 


> 
I 


£ 


NOTE  BY  THE  EDITOR 


TENTH  AMERICAN  EDITION. 


Of  the  merits  of  Starkie  on  Evidence  it  is  entirely  unnecessary  to 
speak.  It  has  been  too  long  and  favorably  known  to  the  profession 
to  require  commendation.  The  Fourth  English  Edition  has  been 
adapted  to  the  present  state  of  the  law  in  England.  It  is  true  that 
some  of  the  alterations  recently  adopted  by  statute  in  that  country 
have  not  yet  been  universally  introduced  into  this.  In  many  of  the 
states,  however,  they  have  already  been  incorporated  into  their  legisla- 
tion. The  experience  of  those  states  where  the  law  of  evidence  has 
been  simplified  by  the  repeal  of  all  arbitrary  rules  of  exclusion  speaks 
so  loudly  in  favor  of  that  reform,  that  the  example  must  spread.  The 
labors  of  former  American  Editors  have  been  carefully  retained,  and 
notes  and  references  to  the  more  recent  decisions  have  been  added  to 
bring  up  the  work  to  the  present  time. 

G.  S. 

April,  1876. 


ADVERTISEMENT 


TO  THE  FOURTH  LONDON  EDITION. 


The  Editors,  in  preparing  for  publication  this  edition  of  the  first 
volume  of  Mr.  Starkie's  work,  have  used  their  best  endeavors  to 
render  that  volume,  which  contains  the  Principles  of  the  Law  of 
Evidence,  perfect  in  itself  and  available  for  the  purposes  not  only  of 
the  Student  but  also  of  the  Practitioner.  They  have  subdivided  it 
into  chapters,  so  as  to  render  it  more  easy  for  perusal  and  reference. 
They  have  introduced  into  it  those  heads  from  the  second  and  third 
volumes  which  relate  to  Parol  Evidence  and  Presumptions,  and  have 
relieved  it  of  much  matter  which  more  properly  belonged  to  the 
Digest  of  proofs  contained  in  those  volumes.  They  have  also  added 
a  copious  Index,  still  retaining  the  full  analysis  of  the  matter  con- 
tained in  the  Table  of  Contents,  and  have  thus,  they  trust,  rendered 
this  volume  as  complete  a  Treatise  in  itself  as  the  present  state  of  the 
Law  will  permit. 


PREFACE 

TO    THE    FIRST    EDITION, 


The  investigation  of  truth,  the  art  of  ascertaining  that  which  is 
unknown  from  that  which  is  known,  has  occupied  the  attention,  and 
constituted  the  pleasure  as  well  as  the  business  of  the  reflecting  part 
of  mankind  in  every  civilized  age  and  country.  But  inquiries  of 
this  nature  are  nowhere  more  essential  to  the  great  temporal  interests 
of  society  than  where  they  are  applied  to  the  purposes  of  judicial 
investigation  in  matters  of  fact.  Their  importance  is  obviously  com- 
mensurate with  the  interests  of  justice  and  of  right ;  the  best  and 
wisest  laws  are  useless  until  the  materials  be  provided  upon  which 
they  can  safely  be  exercised ;  in  other  words,  the  administration  of 
a  law  assumes  the  truth  of  the  facts  or  predicament  to  which  it  is 
applied. 

With  those  who  regard  law  as  a  science  which  rests  on  certain  fixed 
and  equitable  foundations  and  Avho  view  its  decisions  not  as  arbitrary 
precedents,  but  valuable  only  as  they  illustrate  the  great  principles 
from  which  they  emanate,  this  branch  of  jurisprudence,  which  com- 
prises the  rules  and  practice  of  judicial  investigation,  must  exceed  all 
others  in  point  of  interest.  However  widely  different  codes  may  vary 
from  each  other  in  matters  of  arbitrary  positive  institution,  and  of 
mere  artificial  creation,  the  general  means  of  investigating  the  truth 
of  contested  facts  must  be  common  to  all.  Every  rational  system 
which  provides  the  means  of  proof  must  be  founded  on  experience 
and  reason,  on  a  well-grounded  knowledge  of  human  nature  and  con- 
duct, on  a  consideration  of  the  value  of  testimony,  and  on  the  weight 


VI  PREFACE. 

due  to  coincident  circumstances.  Here,  therefore,  the  object  of  the 
law  is  identified  with  that  of  pure  science ;  the  common  aim  of  each 
is  the  discovery  of  truth ;  and  all  the  means  within  the  reach  of 
philosophy,  all  the  connections  and  links,  physical  or  moral,  which 
experience  and  reason  can  discover,  are  thus  rendered  subservient  to 
the  purposes  of  justice.  In  diiferent  systems  of  laAv,  the  great  prin- 
ciples on  which  the  rules  of  evidence  depend  may  be  and  are  variously 
modified ;  but  every  departure  from  those  principles,  wheresoever  it 
occurs,  must  constitute  a  corresponding  and  commensurate  imperfec- 
tion. 

Notwithstanding,  however,  the  universality  of  the  great  principles 
of  the  science,  it  is  essential  in  practice  to  guard  and  limit  the  recep- 
tion of  evidence  by  certain  definite  and  positive  rules.  Nature  has 
no  limits ;  but  every  system  of  positive  law  must,  on  grounds  of 
policy,  prescribe  artificial  boundaries,  even  in  its  application  to  a 
subject  which  from  its  independent  nature  least  of  all  admits  of  such 
restraint.  These,  however,  are  necessarily  for  the  most  part  of  a 
negative  description,  the  effect  of  Avhich  is  to  exclude  evidence  in 
particular  cases,  and  under  special  circumstances,  on  general  grounds 
of  utility  and  convenience;  yet  even  here  so  difficult  is  it  to  prescribe 
limits  on  such  a  subject,  without  the  hazard  of  committing  injustice, 
that  rules,  the  general  policy  of  which  is  obvious,  are  by  no  means 
favored.  Thus,  although  according  to  the  law  of  England,  he  who 
is  interested  is  also  incompetent  to  be  a  witness,  yet  the  courts  are 
ever  anxious  to  apply  the  objection,  as  natural  reason  would  apply  it, 
to  the  credibility  rather  than  to  the  competency  of  a  party;  to  re- 
ceive and  to  weigh  his  testimony,  rather  than  wholly  and  peremptorily 
to  exclude  it.  It  is  true,  that  in  many  instances  the  law  may  by  rules 
of  a  positive  nature  annex  a  technical  and  arbitrary  effect  to  particu- 
lar evidence,  which  does  not  actually  appertain  to  it.  Thus,  by  our 
law,  judgment  is  frequently  absolute  and  conclusive  evidence  of  the 
facts  which  have  been  already  contested;  but  one  general  observation 
is  applicable  to  this  and  to  most  instances  of  a  similar  nature  includ- 
ing the  numerous  cases  of  legal  presumption,  that  they  are  not  used 


PREFACE.  Vll 

as  the  means  or  instruments  of  truth,  but  are  in  virtue  and  effect 
nothing  more  than  mere  technical  and  positive  rules,  which  are  wholly 
independent  of  the  principles  of  evidence,  and  whose  only  foundation 
is  their  general  utility  and  convenience. 

To  go  farther,  and  by  any  positive  and  arbitrary  rules  to  annex  to 
particular  evidence  any  technical  and  artificial  force  Avhich  it  does  not 
naturally  possess,  or  to  abridge  and  limit  its  proper  and  natural  effi- 
cacy, must  in  all  cases,  where  the  object  is  simply  the  attainment  of 
truth,  not  only  be  inconsistent  and  absurd  in  a  scientific  view,  but 
what  is  worse,  would  frequently  be  productive  of  absolute  injustice. 
To  admit  every  light  which  reason  and  experience  can  supply  for  the 
discovery  of  truth,  and  to  reject  that  only  which  serves  not  to  guide 
but  to  bewilder  and  mislead,  are  the  great  principles  which  ought  to 
pervade  every  system  of  evidence.  It  may  safely  be  laid  down  as  an 
universal  position,  that  the  less  the  process  of  inquiry  is  fettered  by 
rules  and  restraints,  founded  on  extraneous  and  collateral  considera- 
tons  of  policy  and  convenience,  the  more  certain  and  efficacious  will 
it  be  in  its  operation. 

To  pursue  such  general  observations  further  in  this  place  would 
interfere  too  much  with  the  arrangement  of  the  present  work,  the 
objects  of  which  are  now  to  be  announced. 

It  is  proposed  in  the  following  Treatise  to  consider  the  practice  of 
the  law  in  England  on  the  subject  of  judicial  proofs.  With  this  view, 
the  elementary  principles,  by  which  the  admissibility  of  evidence  to 
prove  matters  of  fact  before  a  jury  is  governed,  will  first  be  con- 
sidered. A  second  division  will  contain  an  enumeration  of  the  dif- 
ferent instruments  of  evidence.  In  a  third,  the  application  of  these 
principles  and  instruments  to  the  purposes  of  proof  will  be  considered, 
as  also  the  distinction  between  law  and  fact,  and  the  force  and  effect 
of  direct  and  circumstantial  evidence;  and,  lastly,  the  evidence  essen- 
tial to  the  proof  of  particular  issues  Avill  be  detailed,  and  references 
made  to  the  leading  decisions  connected  with  the  particular  subject  of 
proof. 


Vlll  PREFACE. 

Nothing  can  be  more  agreeable  than  to  compare  the  Law  of  Evi- 
dence as  it  now  exists,  with  the  rude  practice  which  formerly  pre- 
vailed, when  its  principles  were  so  dubious  and  unsettled,  that  the 
very  means  devised  for  the  discovery  of  truth  and  advancement  of 
justice  were  not  unfrequently  perverted  to  the  purposes  of  injustice, 
and  made  the  instruments  of  the  most  grievous  and  cruel  oppression. 
Whoever  institutes  that  comparison  will  find  great  reason  to  approve 
of  the  changes  which  have  taken  place ;  but  no  mistake  can  be  more 
injurious  to  the  law,  as  a  system,  or  oppose  a  greater  obstacle  to  all 
future  improvement,  than  to  suppose  that  the  Law  of  Evidence  has 
attained  to  its  highest  perfection.  It  is,  however,  far  from  the 
Author's  present  purpose  to  enter  into  any  discussion  on  the  subject 
of  the  imperfections  and  anomalies  which  yet  encumber  this  branch 
of  the  law.  To  the  learned  judges  of  modern  times  the  highest 
praise  is  due  for  the  strenuous  exertions  which  they  have  made  to 
reduce  the  Law  of  Evidence  to  a  system,  founded  on  just  and  liberal 
principles ;  and  it  is  to  be  hoped  not  only  that  those  imperfections 
which  still  subsist,  which  have  been  spared  from  their  antiquity,  and 
exist  as  a  kind  of  prescriptive  evils,  will  in  time  be  removed  by  legis- 
lative, if  they  be  beyond  the  reach  and  scope  of  judicial  authority ; 
but  that  such  other  improvements  will  be  made  as  reason  exercised 
on  mature  experience  shall  warrant. 


TABLE  OF  CONTENTS. 


PART  I.     Containing  the  General  Principles  of  the  Law  of  Evidence, 
p.  1  to  lOL 

PART  II.     The  Instruments  of  Evidence,  p.  102  to  583. 

PART  III.     The  Application  of  the  above  Principles  and  Instruments  to 
THE  Proof  of  Issues  generally,  p.  584  to  the  end. 


PART     I. 

PRINCIPLES  OF  EVIDENCE. 


INTRODUCTION. 

Elementary  Divisions             .            .            .            .            .            .  .1 

The  division  of  law  into  preventive  and  remedial              .             .  .           ib. 

The  necessity  for  rules  of  investigation  to  effectuate  such  provisions  .       2 

Issues  in  fact  result  from  pleadings,  and  are  triable  by  jury      .  .             3 

Observations  on  the  origin  and  functions  of  the  jury              .             .  .5 

on  the  fitness  of  the  tribunal             ....  6 

What  is  comprised  under  cwMeuce;  distribution  of  the  subject          .  .     14 

CHAP.  I. — Natural  Principles  of  Evidence. 

The  general  principles  of  evidence  are  the  ordinary  ones  naturally  used  for 
the  purpose  of  investigating  past  transactions  ....  15 

These  are  subject  to  artificial  rules,  which  either  restrain  natural  evidence 
or  create  some  artificial  effect  .  .  .  .  .  11,12 

CHAP.  II. — Excluding  Principles. 

Principles  of  excluding  rules  .  ....  .18 

Evidence  distinguishable  as  direct  and  indirect       .  .  .  .21 

i)irec<  distinguishable  as  immediate  and  mediate  .  .  .  ib. 

Principles  which  regulate  the  admission  of  immediate  testimony      .  .    ib. 

Oath  .........  22 

Tests  of  truth  ;  disqualification  from  turpitude  ....    ib. 

Disqualification  from  interest  ......  ib. 

Necessity  for  defining  the  rule  .  .  .  .  .  ,    ib. 


TABLE    OF     CONTENTS. 


Nature  of  the  interest 

Exceptions         .... 

Operations  of  this  excluding  principle 

Obligation  of  an  oath   , 

What  belief  is  necessary     . 

Force  of  an  oath 

Oath  must  be  judicial 

Declaration  by  party  in  extremis 

Affirmation  by  a  Quaker     . 

Witnesses  for  prisoners  are  now  to  be  sworn 

Bankrupts  and  their  wives 

Test  of  cross-examination 

Excludes  hearsay  evidence 

Exception,  judgments  ?■«  7-era    . 

Exception,  dying  declaration 

Exclusion  of  secondary  evidence 

from  policy — husband  and  wife 
Confidential  communication 
Witness  not  bound  to  criminate  himself    . 
Exclusion  from  state  policy 


24 
ih. 
28 
30 
ih. 
ih. 
31 
32 
ih. 
33 
34 
ih. 
35 
ih. 
38 
39 
ih. 
40 
41 
ih 


CHAP.  III. — Mediate  and  Secondary  Evidence. 


General  reputation  .... 

Reputation  in  case  of  pedigree 

Ancient  facts  .... 

Presumptions,  why  founded  on  reputation 

Reputation,  in  what  cases  admissible 

The  facts  must  be  of  a  public  nature  . 

Must  be  general      .... 

Support  by  acts  of  enjoyment  . 

Admission    ..... 

Declaration  accompanying  an  act 

Secondary  mediate  testimony 

Depositions  of  witnesses  (in  former  proceedings) 

Traditionary  evidence 

Of  public  nature  .... 

Confined  to  general  declaration 

Derived  from  persons  likely  to  know  the  fact . 

Must  be  free  from  suspicion  . 

Declarations,  &c.,  made  against  interest,  &c.  . 

In  course  of  business 


43 

.     45 

46 

.    ih. 

47 

.    ih. 

49 

.     50 

ih. 

.     51 

55 

since  deceased 

.     61 

62 

.    ih. 

62 

. 

.    ih. 

ih. 

.     64 

65 

CHAP.  IV. — Indirect  Evidence. 

Necessity  for  resorting  to  indirect  evidence    .  .  .  .  .67 

Evidence  of  circumstances  connected  with  the  fact  .         .  .  .  ih. 

Juries  formerly  returned  from  the  vicinage     .  .  .  .  .69 

Foundation  of /rre.s't(»ip</ons  as  to  motives  ....  70 

Presumptions  from  conduct      .  .  .  .  .  .  .71 

Omission  to  produce  evidence  within  the  knowledge  and   power,   of  the 
party         .........  7") 

Presumptions  from  the  course  of  dealing         .....     ib. 

Presumption  as  to  continuance       ......  76 

Circumstantial  and  presumptive  evidence  in  genei'al  .  .  .77 

General  rule  that  all  facts  arc  admissible  which  afford  reasonable  infer- 
ences        .........  78 

Natural  course  of  in((uiry  on  failure  of  direct  evi<lenee  .  .  .79 

Circumstantial  (ividerice.      .......  SO 

To  what  extent  admissible         .  .  .  .  .  .  .81 


TABLE    OF    CONTENTS. 


XI 


Ees  inter  alios  acta,  grounds  of  the  rule        .            .             .            .  .81 

Declarations  by  strangers              ......  ib. 

Acts  of  strangers         .             .             .             .             .             .             •  .82 

Effect  of  tlie  rule   .             .             .  _          .             .             .             .             .  84 

Does  not  exclude  the  acts  and  admissions  of  a  party            .             .  .85 

Or  laws  and  customs          .......  ib. 

Or  facts  which  have  a  legal  operation  on  the  question         .             .  .       ib. 

Effects  of  the  rule  as  to  declarations,  &c.             ....  86 

Declarations  accompanying  acts,  why  admissible      .             .             .  .87 

Declarations  when  part  of  the  res  gestce,  how  proved      ...  88 

Declarations  may  be  evidence  for  some  purpose  although  not  for  others  .       89 

Collateral  facts  and  circumstances             .....  90 

Possession,  ancient  instruments          .             .             .             .             .  .93 

Declarations  admissible  as  explanatory  evidence             ...  95 

On  questions  of  skill  .             .             .             .             .             .             .  .96 

CHAP.  V. — Artificial  Evidence. 

Of  ARTIFICIAL  and  conventional  evidence             ....  96 

Records  .........       97 

Verdict        .........  98 

Conventional  Evidence            .             .             .             .             .             .  .       ib. 

Estoppels    .........  99 

Presumptions  .........     100 


PART    II. 

OF  THE  INSTRUMENTS  OF  EVIDENCE. 


CHAP.  I.— Oral  Evidence. 

Oral  evidence,  its  natural  priority          .....  102 

1. — Mode  of  enforcing  the  attendance  of  a  witness  in  civil  and  criminal 
cases,  and  also  of  enforcing  his  production  of  writings  in  his  pos- 
session, and  the  incidents  of  his  attendance  or  defatdt. 

Compulsoi'yj)?'ocess  on  witness  not  in  custody           ....  103 

Expenses  of  witness           .......  ib. 

Consequence  of  disobedience              .             .             .             .             .             .  ib. 

Where  witness  is  in  custody          ......  104 

In  criminal  cases         ........  105 

In  bankruptcy  and  other  cases      ......  108 

Proceeding  where  the  witness  cannot  be  procured    ....  109 

Subpoena  duces  tecum         .  .  .  .  .  .  .110 

Writings  to  be  produced  where  the  production  will  not  prejudice.              .  112 

Witness,  obligation  of,  to  be  sworn  and  give  evidence    .             .             .  113 

Protection  of  witness  .             .             .             .             .             .             .             .  ib. 


II. —  Objections  in  exclusion  of  the  testimony  of  ivitnesses. 

Time  of  objecting  .  .  .  .  .  .  .  .115 

Examination  as  to  religious  belief      .  .  .  .  .  .116 

Infant         .........  117 

Incompetency  from  turpitude  .  .  .  .  .  .      ib. 

from  interest  .  .  .  .  .  .  118 


xn 


TABLE    OF    CONTENTS. 


Effect  of  Stat.  6  &  7  Vict.  c.  85 
Husband  and  wife 
Mode  of  objecting  to  competency 
Proof  of  interest  by  evidence 
Time  of  objecting 


125 
138 
143 
144 
ib. 


III. — Mode  of  examinaiion  in  chief — Cross-examination, — and  re-exami- 
nation. 

Examination  in  chief;  leading  questions 

When  necessary 

When  allowed 

Witness  as  to  what  examinable 

His  belief  .  .  .  •  . 

Questions  of  skill 

Foreign  law 

Opinion 

General  result 

Witness  may  refresh  his  memory 

Examination  as  to  hearsay 

Reputation 

Matters  of  hearsay 

Matters  of  confidence 

Cross-examination 

Practice  as  to  cross-examination 

Leading  questions  .... 

Witnesses  may  be  examined  apart  from  each  other 

Cross-examination  as  to  collateral  facts    . 

How  far  the  witness  is  bound  to  answer 

Cross-examination  in  order  to  discredit  a  tvitness 

Whether  a  witness  must  answer  a  question  tending  to  d 

Question  to  be  put  to  warrant  evidence  in  contradiction 

Effect  of  answer  on  cross-examination 

Cross-examination  as  to  writings  . 

PiE-EXAMiNATioN  of  witness     . 

Recalling  witness  . 


166 

,       , 

.  ih. 

167 

. 

.  172 

ib. 

,        , 

.     173 

175 

,       . 

.  176 

ib. 

, 

.  177 

185 

,       , 

.  186 

191 

,       . 

.  ih. 

194 

.       , 

.  197 

ib. 

,        ^ 

.     198 

200 

,        ^ 

.  203 

207 

disgrace  him 

.  ib. 

1 

213 

,     , 

.  215 

216 

,     , 

.  231 

236 

IV. — The  mode  of  rebutting  the  testimony  of  ivitaesses. 

Credit  of  witness,  how  impeached      ..... 

By  proof  of  declarations,  &c.,  of  the  witness 

Inquiry  previous  to  contradiction       ..... 

Evidence  in  contradiction  ..... 

A  party  not  allowed  to  discredit  his  own  witness 

A  party  when  allowed  to  contradict  his  own  witness 


237 
238 

ib. 
242 
244 

ib. 


V. — The  mode  of  confirming  the  testimony  of  tvitnesses. 

Evidence  in  confirmation  of  witness  ..... 
On  appeal  .  .  .  .  .  .  .  . 


254 


CHAP.  II. — Written  Evidence. 
Proof  of  ruiiLic  documents  in  general 


255 


I. — Documents  of  a  j)ublic  nature,  not  judicial. 


IIow  procured 

Proof  l)y  exemjjiificaiion 

Copies  by  autliori/cd  ollicci'S 


256 
257 

260 


TABLE    OF    CONTENTS. 


Xlll 


Proof  by  office  copy         .... 

Statutory  office  copy  ..... 

Proof  of  public  document  by  a  sworn  copy 

Copy  not  admissible  where  the  original  is  produced 

Record,  &c.,  how  proved  when  lost 

Public  documents,  not  judicial,  admissibility  of 

Acts  of  Parliament,  public 

Irish  statutes 

Private  act  of  Parliament 

Recitals  in  acts  of  Parliament 

Acts  of  State — Gazette    .... 

Public  documents  printed  by  Queen's  printer 

Journals  of  the  Lords  and  Commons 

Public  acts  of  the  Crown 

Ancient  surveys  under  authority 

Inquisitions  post  viortem 

Terriers      ...... 

Proof  as  to  place  of  deposit  . 

Public  licenses — grants  and  certificates  . 

Certificates      ..... 

Public  registers  of  a  parish 

Parish  books  ..... 

Books  and  documents  of  public  officers 
Poll  books       ..... 

Prison  books 

Corporation  books 

Chancellor's  book 

Books  of  clerk  of  the  peace    . 

Ships'  registers 

Stage  coach  licenses  . 

Heralds'  books 

Armorial  bearings 

Duchy  book 

Commissioners'  books 

Land  tax  book 

Public  histories  and  chronicles 

Public  documents,  how  proved 

II. — Judicial  documents. 

Judgments,  &c.,  general  principles  of  admissibility 
Conclusive,  when        .  .  ... 

Judgment  in  rem  ..... 

Judgment  evidence  as  a  fact,  and  as  to  all  legal  consequences 

Judgment  in  matter  of  private  litigation 

Identity  of  parties 

Those  claiming  in  privity 

Againsf  one  who  might  have  been  a  party 

Want  of  mutuality 

Verdict  in  civil  proceeding,  whether  evidence  in  a  criminal  case 

Identity  of  the  fact  ..... 

il/anrter  of  the  adjudication    .... 

Application  of  the  judgment  in  proof     . 

Effect  of  a  judgment  .... 

When  conclusive  ...... 

Foreign  judgments,  VfhQVL  cor\.c\\xs\\Q 

How  far  examinable         ..... 

Judgments  of  inferior  courts,  how  far  examinable  . 

In  private  matters,  effect  of         . 

Verdicts  and  judgments  in  criminal  cases,  admissibility  of  . 

Verdict  in  criminal  case  not  evidence  in  civil  action 


XIV 


TABLE     OF    CONTENTS. 


Judgment  in  criminal  cases,  effect  of,  in  evidence 

A  penal  judgment  conclusive  as  to  all  legal  consequences 

Judgments  and  convictions  in  inferior  courts 

Convictions  by  justices    , 

Sentences  by  colleges  and  visitors     . 

Judgments  in  rem,  general  principles 

Of  the  ordinary  and  spiritual  court 

Sentence  of  a  spiritual  court 

Of  condemnations  in  the  Exchequer  . 

Admiralty  decisions 

Order  of  justices         .... 

Judgments  in  quo  warranto 

Conclusive  against  parties,  when 

To  prove  custom,  &c. 

Proof  of  judgments,  verdicts,  &c.     . 

of  a  decree  in  Chancery 
Sentences  of  spiritual  courts  . 
Judgment  of  an  inferior  court     . 
Proof  of  convictions  by  justices  of  the  peace 
Of  an  award  .... 

Of  a  foreign  judgment 
Judgment,  how  rebutted  . 
Inquisitions,  when  admissible 
Depositions,  when  admissible 
Witness  must  be  dead  or  absent 
Identity  of  parties 
Identity  of  subject-matter 
Privity  of  claim     •  .  .  . 

In  a  legal  proceeding 
Power  to  cross-examine  . 

Depositions,  when  evidence  to  prove  reputation 
India,  examination  of  witnesses  in 
Depositions  of  witnesses  resident  abroad 
Bill  to  perpetuate  testimony 
Preparatory  facts,  how  proved 
Existence  of  a  lawful  cause 
Identity  of  deponent  .... 
Proof  by  copy,  &c. 
Leading  interrogatories 
Depositions  in  Ecclesiastical  Courts 
Writs,  u-arrants,  &c.,  when  evidence 
For  what  purposes  admissible     . 
Effect  of  the  writ  in  evidence 
Sheriff's  return  on  a  Avrit 
Writs,  PROOF  of  ...  . 

Bill  in  equity,  when  evidence 
Answer  in  Chancery,  when  evidence 
The  whole  of  an  answer  is  evidence 
Proof  of  bill  and  answer 
Affidavits  ..... 
Rules  and  orders         .... 
Pleadings  in  an  action  at  law 
Protestations  ..... 

III. — Mixed  documents 

Public  companies  under  statutes 

Court  rolls 

Corporation  brjoks      .... 

liooks  of  public  companies,  &c.  . 

Proof  of  corporation  books    . 


452 

ib. 

455 

456 

ib. 


TABLE    OF    CONTENTS. 


XV 


IV. — Private  documents. 
Express  admissions  by  a  party 
Estoppel  ....... 

Privies  bound  bt/  estoppel,       .... 

The  sense  of  contracts  not  to  be  altered  by  parol  evidence 
Declaration  or  entry  by  third  person  admissible,  when 
Entry  or  declaration  accompanying  an  act 
Title  deeds      ...... 

Surveys  and  maps  .  .  .  .  . 

Ancient  deeds,  maps,  &c.      ..... 

Declarations  or  entries  made  against  the  interest  of  the  party 
Entry  by  rector  ...... 

Entries  by  receivers,  stewards,  &c.,  charo;incf  themselves 
Entry  in  the  usual  course  of  professional  business 
Proof  of  private  instruments     .... 

Production      ....... 

Stamp,  enrolment,  &c.     ..... 

Proof  by  attestinr/  ivitness     . 

Proof  of  the  sealing  of  a  deed    .... 

Proof  of  delivery       ...... 

Proof  on  denial  by  subscribing  witness 

Excuse  for  the  absence  of  subscribing  witness 

Proof  by  one  of  several  attesting  witnesses 

Secondary  proof  in  the  absence  of  the  attesting  witness    . 

Proof  of,  when  30  years  old 

Proof  as  to  custody  of  ancient  documents 

Proof  where  there  is  no  attesting  witness 

Proof  of,  in  case  of  loss 

Evidence  of  search 

Evidence  of  execution 

Proof  by  secondary  evidence 

Of  a  letter  copied  by  a  clerk 

Secondary  evidence 

Of  an  instrument  when  in  t\iQ  possession  of  the  adversary 

Notice  to  produce  the  deed,  &c. 

Proof  of  notice  to  produce    . 

When  unnecessary 

Proof  of  deed  coming  from  the  adversary's  possession 

Proof  of,  by  admission    . 

Proof  of,  by  enrolment 

Deed  to  lead  the  uses  of  a  fine 

Recital  in  a  deed        ..... 

An  intrinsic  objection  will  not  preclude  the  reading 

The  ivhole  of  an  entire  document  to  be  read 

Jury  to  judge  of  the  credit  due  to  the  whole,  or  part 


459 
461 
463 

ib. 

ib. 
466 
472 
473 

ib. 
474 
476 
479 
492 
498 
499 
503 

ib. 
508 
509 
510 
512 
518 
519 
521 
524 
529 
530 
531 
541 
542 
547 
548 
550 
554 
558 
561 
565 
571 
573 
577 

ib. 
578 
579 
583 


PART    III. 

OF  PROOF. 


CHAPTER  I. — Evidence  to  be  supplied  by  the  Parties. 

General  division  ........ 

Onus  probandi  ....... 


585 
ib. 


XVI 


TABLE     OF    CONTENTS. 


Neo;ative  to  be  proved,  when 

Person  most  likely  to  possess  best  proof 

AVhere  the  law  presumes  the  affirmative 

Where  negative  involves  criminal  omission 

Appeal      ..... 

Ricrht  to  begin  .... 

Plaintiff    ..... 

Defendant       ..... 

Ejectment  .... 

Supplying  defects  after  case  closed  . 

Order  of  proof  where  several  issues 

Evidence  in  reply       .... 

Evidence,  where  defendant  begins 

Arguments     ..... 

Several  defendants 

Statement  of  counsel  as  to  the  cause  of  action 

Order  of  trial  where  several  issues 

Order  of  address  where  different  counsel  appear 

Evidence  must  be  relevant 

Must  be  confined  to  the  issue 

Collateral  facts     .... 

Variances — evidence  to  correspond  with  proceedings 

Surplusage  .... 

Partial  proof ..... 

Descriptive  allegation 

Redundant  proof       .... 

General  inference 

Reconcilement  of  variance  by  amendment  . 

What  matters  admitted  by  the  pleadings 

Quality  of  evidence 

The  best  evidence  must  be  adduced 

The  rule  is  of  a  comparative  nature 

In  what  cases  the  rule  applies    . 

The  rule  does  not  exclude  inferior  when  superior  evidence  fails 

Or  is  unattainable 

Or  where  no  presumption  of  fraud  arises  from  the  substitutio 

Parol  evidence  not  admissible  to  every  written  document 

Purposes  for  which  it  may  be  offered  in  relation  to  written  evidence 

To  supersede  it     . 

By  supplying  defect  .... 

Where  instrument  ambiguous     . 

Patent  and  latent  ambiguity 

Removing  apparent  ambiguity    . 

Not  admissible  to  contradict  written  evidence 

Deed 

Not  admissible  to  vary,  extend,  or  limit  it  . 

Consideration        .... 

Written  agreement     .... 

Parol  evidence  of  intention  to  alter 

Will     .  .  .  . 

To  vary  legal  construction 

To  disprove  existence  or  to  rebut  operation 

Fraud       ..... 

To  avoid  illegality      .... 

Mistake     ..... 

Discharge  by  other  matter    . 

To  give  effect  to  written  instrument 

To  apply         .  . 

Latent  ambiguity 

To  explain  cliarter     .... 


TABLE    OF    CONTENTS 

Private  deed  ...... 

Mercantile  contracts         .... 

Annex  customary  incidents  .... 

Re})ut  presumption  .... 

Independent  form  and  efl'ect  of  parol  evidence 

Written  instrument,  when  conclusive     . 

Receipt  ...... 

Confession  ..... 

As  to  what  inconclusive         .... 

Operation  against  strangers 

Independent  operation  of  parol  evidence 

Oral  evidence  of  a  contract,  when  excluded 

Distinction  between  secondanj  and  defective  evidence 

Quantity  and  measure  of  evidence 

Matter  judicially  noticed 

Legal  presumptions 

Kinds  of 

Artificial  . 

Of  mere  law   . 

Of  law  and  fact    . 

Natural 

Of  innocence 

Omnia  rit£  esse  acta 

From  time 

Of  continuance 

From  conduct 

From  experience 

From  course  of  dealing 


XVII 

700 
701 
710 
7i;5 
716 
717 
717 
719 
720 
725 
729 
731 

ib. 
733 
735 
741 
742 

ib. 
747 
748 
751 
755 
757 
760 

ib. 
762 

ib. 
763 


CHAP.  II. — Duty  of  the  Court. 


Questions  of  law         ..... 

In  special  verdicts  the  jury  must  find  facts,  and  not  mere 
Law  and  fact  ..... 

General  distinction  between  questions  of  law  and  fact  . 
Instances  of  reasonable  time,  &c. 

General  terms  involve  questions  of  law  as  well  as  of  fact 
Reasonable  time,  when  a  question  of  law,  when  of  fact 
Notice  of  dishonor  of  bill  of  exchange 
Reasonable  time,  &c.,  when  a  question  of  fact 
Standard  of  comparison  in  the  absence  of  a  legal  rule 
Reasonable  time,  &c.,  is  not  in  the  abstract  a  question  of 
fact  ...... 

Mixed  questions  of  law  and  fact 

Reasonable  time         ..... 

Probable  cause     ..... 

Fraud  ...... 

Malice  and  intention        .... 

Negligence,  &c.  ..... 

Construction  of  written  documents 

Collateral  matters  of  law       .... 

Bills  of  excej)tions  .... 

Form  of  the  bill         ..... 

Course  of  proceedings  upon  it    . 

Demurrer  to  evidence 

Neic  trial  ..... 

Mistake  or  misdirection  of  the  judge 

Misdirection,  waiver  of    . 

New  trial  not  granted  on  an  objection  not  taken  at  the  tri 

Mistake  or  misunderstanding  of  the  jury 


evidence 


mere  law 


al 


764 
765 

ib. 
767 
768 
770 
772 
773 
774 
775 
e 

ib. 
717 
779 
781 
784 
785 

ib. 
786 
788 
790 
794 
795 
797 
798 
799 
801 

ib. 
802 


XVlll 


TABLE     OF    CONTENTS. 


Practice  as  to  nonsuits 
Charge  to  juries  . 


CHAP.  III. — Duty  of  the  Jury. 


Province  of  juries  to  loeigh  probabilities 

Juries,  how  far  limited  by  law    . 

Juries  bound  by  legal  rules  . 

Degrees  of  evidence 

Mere  preponderance 

Prima  facie  and  conclusive  evidence 

Direct  evidence 

Integrity  of  witnesses 

Influence 

Manner  of  the  witness     . 

Ability  of  witnesses  . 

Number  of  witnesses 

Consistency  of  testimony 

Effect  of  inconsistency     . 

Partial  variances 

Aggregate  force 

Conformity  with  experience 

Conformity  with  circumstances 

Grounds  of  circumstantial  proof 

Coincidence  between  facts  and  hypothesis 

Moral  coincidences  .... 

Conduct  and  intention      .... 

Coincidences  from  ordinary  experience 

Absence  of  evidence  tending  to  a  different  conclusion 

Dependent  and  independent  circumstances    . 

Force  of  concurring  probabilities 

Basis  of  circumstances  .  .  .  • 

Number  of  circumstances 

False  circumstances 

Conclusive  tendency         .... 

Exclusion  to  a  moral  certainty 

The  corpus  delicti  must  be  proved 

Inquiry  as  to  other  hypothesis 

To  the  exclusion  of  all  reasonable  doubt 

Circumstantial  evidence  ought  not  to  supersede  direct  evidence 

Observations  on  conflicting  evidence 

Conflicting  testimony 

Positive  and  negative  testimony 

Demeanor  of  the  witnesses  .... 

Consistency  of  testimony  and  comparison  with  circumstances 

With  written  documents        ..... 

Total  rejection  of  testimony 

Comparison  of  direct  with  circumstantial  evidence 

Consistency  of  positive  testimony  with  circumstances 

Conflict  in  circumstances        ..... 

Rejection  of  circumstancesinconsistent  with  those  which  arc  fully 

Fraud  in  circumstances  ..... 

Conflict  of  established  circumstances      .... 


806 
810 


.      812 

814 
.      816 

817 
.      818 

819 
.      820 

ib. 
.      821 

822 
.      823 

827 
.      828 

829 
.      830 

832 
.       ib. 

838 
.      841 

842 
.      845 

849 
.      850 

851 
ib. 

853 
.      856 

857 
ib. 

859 

.      862 

ib. 

.      863 

865 

.      866 

ib. 

ib. 

867 

.      871 

ib. 

.      872 

873 
.      874 

876 
.  877 
established  878 


Statute  0  &  7  Vict.  c.  85 
Statute  14  ct  15  Vict,  c  99 
Statute  15  <t  16  Vict.  c.  76 


APPENDIX. 


881 
882 
887 


TABLE  OF  CASES. 


Abbey  v.  Lill,  174. 
Abbot  V.  JIassie,  650. 

V.  Plumbe,  504.  505. 
Abbott  V.  Hendricks,  661. 

V.  Parsons,  802. 
Abel  V.  Potts,  305. 
Abignye  v.  Clifton,  294. 
Abrahams  v.  Bunn,  118,  122. 
Acerro  v.  Petroni,  172. 
Ackerley  v.  Parkinson,  401. 
Ackworth  v.  Kempe,  436. 
Adam  v.  Kerr,  509,  513,  519,  520. 
Adams  v.  Andrews,  796. 

V.  Canon,  172. 

V.  Davis,  122. 

V.  Peters,  712. 

V.  Savage  (Terre-tenants  of),  738. 

V.  Wordley,  660. 
Adamthwaite  w.  Singe,  271,  503,  579. 
Adey  v.  Bridges,  582. 
Aflalo  V.  Fourdrinier,  120,  129,  555. 
Agriculturist  Cattle  Insurance  Company 

V.  Fitzgerald,  501. 
Aitcheson  v.  Madock,  590. 
Alcock  V.  Cooke, "285. 

V.    Ro^ai    Exchange    Insurance 
Company,  425. 
Aldridge  v.  Haines,  321. 
Alexander  v.  Barker,  808. 

V.  Gibson,  244,  245. 
Alivon  V.  Furnival,  355,  540.  543. 
Allay  V.  Hatchings,  250. 
Aldred  v.  Halliwell,  605. 
Allen  V.  Denstone,  464. 

V.  Dundas,  375,  400,  403. 
V.  Pink,  656,  724. 
Allen's  case,  643. 

Aliibone  v.  Attorney-General,  414. 
Alner  V.  George,  718. 
Althan  (Lord)   v.  Anglesea   (Lord),  410, 

714. 
Alves  V.  Bunbury,  399,  400. 
Amey  v.  Long,  110,  112. 
Amos  V.  Hughes,  585,  600. 
Anderson  v.  Hamilton,  42,  192. 
V.  May,  500,  563. 
V.  Pitcher,  704,  706. 
V.  Shaw,  807. 
V.  Weston,  502,  521,  758. 
Anderton  v.  Magawley,  408. 
Andrews  v.  Askey,  240. 


Andrews  v.  Beauchamp,  411. 
V.  Emmett,  688. 
V.  Marris,  436,  437. 
Angell  V.  Angell,  427,  428. 
Angle  V.  Alexander,  741. 
Anglesea  (Marquis  of)   v.  Lord  Hather- 

ton,  187,  189,  619. 
Angus  V.  Smith,  240. 
Annesley  v.  Anglesea  (Earl  of),  252. 
Anonymous,  256,  259,  277,  484,  564,  571, 

675,  764. 
Ansley  v.  Birch,  110. 
Apothecaries'  Company  v.  Bently,  590. 
Appleton  V.  Braybrook  (Lord),  259,  260, 

265,  399,  400,  454. 
Arden  v.  Tucker,  611. 
Arding  v.  Flower,  113,  114. 
Armit  v.  Breame,  666. 
Armory  v.  Delamirie,  756,  818. 
Armstrong  v.  Hewett,  290. 

V.  Lewis,  792,  793. 
Arnold  v.  Bath  and  Wells   (Bishop   of), 

309. 
Arnott  V.  Redfern,  349. 
Arundell  v.  Falmouth  (Lord),  452. 

V.  White,  397. 
Ashby  V.  Bates,  596,  601. 

V.  Power,  444. 
Ashley's  (Sir  Anthony)  case,  782. 
Ashmore  v.  Hardy,  608. 
Aslin  V.  Parkin,  327. 
Astley  V.  Mills,  714. 
Athlone  Peerage,  300. 
Atkins  V.  Drake,  291. 

V.  Hatton,  290,  293. 
V.  Humphreys,  413. 
V.  Meredith,  555,  557. 
V.  Owen,  500,  540. 
V.  Palmer,  424,  426. 
V.  Watson,  290. 
Atkinson  v.  Carter,  557. 
V.  Warne,  598. 
Attorney-General  v.  Bond,  220,  224,  228. 
V.  Bovett,  423. 
V.   Brazen   Nose    Col- 
lege, 467. 
V.  Briant,  193. 
V.  Bulpit,  199,  200. 
V.  Davison,  418. 
V.  Donaldson,  739. 
V.  Foster,  697. 


XX 


TABLE     OF    CASES. 


Attorney-General  v.  Hitchcock,  114,  202, 
(515. 
«;.Hotham  (Lord),  400. 
V.  King,  379. 
V.  Le    Merchant,    555, 

569. 
V.  Parker,  694,  697. 
r.  Plate    Glass    Com- 
pany, 654,  700. 
V.  Randall,  719. 
V.  Reilly,  423. 
V.  Rogers,  802,  805. 
V.  Taylor,  268,  392. 
V.  Treakstone,  279. 
V.  AVarwick  (Corpora- 
tion), 455. 
Attwood  V.  Small,  617. 
Atty  V.  Parish,  657. 
Augustein  v.  Challis,  729. 
Austin  V.  Bewley,  738. 

V.  Chambers,  617. 
V.  Prince,  206. 
V.  Rumsey,  517. 
Australasia  (Bank  of)  v.  Nias,  353,  358, 

402. 
Avery  v.  Hoole,  809. 
Aveson  v.  Kinnaird  (Lord),  88,  468. 
Ayrey  v.  Davenport,  267,  391. 

Baber  v.  Harris,  657. 
Backhouse  v.  Jones,  619. 

V.  Middleton,  416. 
Bagely  v.  Mollard,  687. 
Bagot  (Lord)  v.  Williams,  336. 
Baikie  i'.  Chandless,  573. 
Baildon  v.  Walton,  446,  787. 
Bailey  v.  Bidwell,  504,  593. 

V.  Colverwell,  751. 

V.  Harris,  320,  373,  378. 
Bain  v.  Mason,  299. 
Bainbridge  v.  Wade,  709. 
Baker  i'.  Dewey,  657. 

V.  Fairfax  (Lord),  411. 

V.  Heard,  657. 

V.  Paine,  675,  676,  677. 

V.  Sweet,  430,  703. 
Baker's  case,  798. 
Baldney  v.  Ritchie,  551,  553. 
Baldwin  v.  Karver,  670. 
Ball  V.  Dunsterville,  508. 
Ball's  case,  622. 
Ballard  v.  Way,  275. 

Banbury  Peerage  case, 421,  422,439,503. 
Barbat  z;.  Allen,  142,  143,  790. 
Barber  v.  Birch,  125. 

V.  Holmes,  299,  305. 
V.  Stead,  521. 
Barclay's  case,  404. 
Barden  i\  De  Keverberg,  619. 
Barford  v.  Nelson,  3  1 1 
Baring  v.  Clagctt,  355. 

V.  Claggctt,  380,  382. 
V.    Royal    Exchange    Assurance 
Company,  380.  381. 


Barker  v.  Macrae,  122. 

V.  Ray,  465,  491. 
Barley's  case,  431. 
Barnard  v.  Duthy,  627. 
Barnard's  case,  860. 
Barne  v.  Whitmore,  444. 
Barnes  v.  Lucas,  568. 

V.  Mawson,  67,  186,  188. 
V.  Ransom,  478. 
V.  Trompowski.  512. 
V.  Winckler,  350. 
Barnstaple  (Corporation  of)   v.  Lathey, 

456. 
Barough  v.  W^hite,  492. 
Barrett  v.  Wilson,  349. 
Barrett  Navigation  (Company  of  Proprie- 
tors of  the)  V.  Shower,  740. 
Barren  v.  Grillard,  442. 
Barrs  v.  Jackson,  323,  338. 
Barry  v.  Bebbington,  65,  477,  481. 
Barrymore  v.  Taylor,  459,  580,  581. 
Barstow  v.  Kivington,  679. 
Banlett  v.  Gillard,  445,  579. 

('.  Pickersgill,  332,  363,  364. 
V.  Purnell,  663. 
V.  Smith,  789. 
Barton  v.  Bricknell.  370. 
Barzillay  v.  Lewis,  380. 
Baskerville  v.  Brown,  390. 
Bastard  v.  Smith,  227,  423,  597,  602,  611. 
Bastin  v.  Carew,  168. 
Bate  V.  Kinsey,  563,  569. 
Bateman  v.  Bailey,  467. 

V.  Phillips,  454,  565. 
Bates  V.  Grabham,  661. 

V.  Wells,  591. 
Bath  (Earl  of)  v.  Bathers.ea,415,  444,  589. 
Bauerman  v.  Radenius,  127. 
Baxter  v.  Pritchard,  784. 
Bayham  v.  Guy's  Hospital,  700. 
Bayley  v.  Hole,  120. 

V.  Warden,  363. 
V.  Wylie,  289,  407,  408,  431. 
Baylis  i'.  Attorney-General,  650. 

V.  Strickland,  469. 
Bayley  v.  Snelham,  689. 
Beachcroft  v.  Beachcroft,  689. 
Beale  v.  Mouls,  615. 
Beamon  v.  Ellice,  199,  200. 
Beasley  v.  Magrath,  442. 
Beauchamp  v.  Parry,  492. 
Beaufort  (Duke  of)  v.   Smith,    275,    278, 

288,  482. 
Beaumont  v.  Fell,  685,  689,  693. 
V.  Field,  692. 

V.  Mountain,  275,  276,  277,  278. 
Beaurain  v.  Scott  (Sir  W.),  393,  737. 
Beck  V.  Beverly,  735. 

V.  Bree,  289. 
Beckam  v.  Drake,  665,  721. 

V.  Osborne,  583. 
Beckrow's  case,  502. 
Beckwith  v.  Bonner,  554. 
V.  Philliby,  781. 


TABLE    OF    CASES. 


XXI 


Beckwith  v.  Sydebotham,  174. 
Becquet  v.  M'Carthy,  355,  357. 
Bedell  v.  Russell,  597. 
Bedell's  case,  659. 
Bedulph  V.  Ather,  387. 
Beech  v.  Jones,  185. 
BeechinjT  v.  Gower,  115,  145. 
Beer  v.  Ward,  522,  523. 
Belcher  t).  Drake,  135. 

V.  M'Intosh,  602. 
Bell  V.  Banks,  130. 

V.  Chaytor,  566. 

V.  Harwood,  325. 

V.  Howard,  725. 

V.  Hull  and  Selbj^  Railway  Company, 
791. 

V.  Smith  119,  234, 

V.  Warden,  770,  773. 
Bellamy's  case,  759. 
Bendyshe  v.  Pearse,  643. 
Bendy's  case,  448. 
Bennett  v.  Coster,  452. 
Bengough  v.  Walker,  671. 
Bennett  v.  Hertford  (Hund.  of),  764. 
Bennion  v.  Davison,  451,  592,  639. 
Benson  v.  Olive,  330,  409,  410,  429,  444, 

579. 
Bent  V.  Baker,  118,  122,  136,  791. 
Bentley  v.  Griffin,  785. 
Berkeley  Peerage  case,  63,  190,  253,  421. 
Bermon  v.  Woodbridge,  444,  583,  873. 
Bernard  (Lord)  v.  Saul,  274. 
Bernardi  v.  Motteux,  381,  382. 
Bernasconi  v.  Farebrother,  810. 
«'.  Fairbrother,  249. 
Bernett  v.  Taylor,  512. 
Berney  v.  Read,  399,  449,  505. 
Berry  v.  Banner,  387. 
Berryman  v.  Wise,  646. 
Bertie  v.  Beaumont,  522,  523,  527. 

V.  Falkland,  669. 
Berty  v.  Dormer,  587,  590. 
Berwick-upon-Tweed  (Mayor,  &c.,  of)  v. 

Murray,  197. 
Bessy  v.  Windham,  385,  389,  403,  436,  799. 
Betsworth  v.  Betsworth,  375. 
Bevan  v.  Williams,  758. 
Beverley  v.  Cravin,  258,  408. 
Bingham  v.  Stanley,  451,  592. 
Birch  V.  Depeyster,  701,  703. 
Bird  V.  Appleton,  382. 

V.  Randall,  344. 
Bird's  case,  403. 
Birt  V.  Barlow,  288,  299,  302. 

V.  Leigh,  603. 

V.  Rothwell,  735,  736. 
Bittleston  v.  Cooper,  559. 
Black  V.  Braybrooke  (Lord)  259,  260,  261, 

295,  399,  737. 
Blackham's  case,  338,  376. 
Blacquiere  v.  Hawkins,  736. 
Blake  v.  Pilford,  42,  193. 
Blakemore     v.     Glamorganshire     Canal 
Company,  326,  328,  332,  365. 


Bland  v.  Ansley,  120. 

Blankley  v.  Winstanley,  696,  697. 

Blatch  V.  Archer,  846. 

Bledstyn  v.  Sedgwick,  717. 

Blewett  V.  Tregonning,  216,  232,  236, 

Bligh  V.  Wellesly,  533. 

Blinkhorne  v.  Feast,  670. 

Blower  v.  Hollis,  268,  392,  393. 

Blundell  v.  Howard,  286. 

Blurton  v.  Toon,  521. 

Bode's  (Baron  de)  case,  175,  412,  429,  487. 

Boehtlinck  v.  Schneider,  175. 

Boilea  v.  Rutlin,  334,  392,  439,  450,  641. 

Bold  V.  Rayner,  653,  705. 

Bolton  V.  Gladstone,  380,  381,  382. 

(Lord)  V.  Tomlin,  181,  650,   729. 
Bonfield  v.  Smith,  599. 
Bonner  v.  Wilkinson,  99. 
Bonzi  V.  Stewart,  640. 
Booth  V.  Cooke,  675. 
V.  Miln,  590. 

V.  Milns,  590,  598,  600,  605. 
Bootle  V.  Blundell,  670. 
Borthwick  v.  Caruthers,  591, 
Botham  v.  Swingler,  144. 
Bottings  V.  Firby,  342,  403. 
Bottomley  v.  Forbes,  705. 
Boucher  v.  Murray,  637. 
Boulter  v.  Murray,  637. 
V.  Peplow,  506. 
Bounty  (case  of  the),  371. 
Bourne  v.  Gatleflfe,  702. 

V.  Whitmore  (Sir  T.),  442. 
Bowden  v.  Home,  336. 
Bowles  V.  Langworthy,  419,  505. 

V.  Neale,  603. 
Bowman  v.  Bowman,  169. 

V.  Horsey,  702. 

V.  Rostron,  343,  345. 

V.  Taylor,  659. 
Boxer  v.  Rabeth,  511,  518,  530. 
Boydell  v.  Drummond,  650. 
Boyle  V.  Boyle,  361. 
Boys  V.  Williams,  688,  689. 
Bradley  v.  Eyre,  402. 

V.  Ricardo,  245. 
V.  Urquhart,  402. 
Bradshaw  v.  Bennett,  566. 
V.  Murphy,  205. 
Bradwin  v.  Harper,  684,  690. 
Brady  v.  Cubitt,  715. 
Brain  v.  Preece,  64,  498. 
Braine  v.  Dew,  188. 
Bramston  v.  Robins,  718. 
Brandao  v.  Barnett,  736. 
Brandford  v.  Freeman,  596. 
Brashier  v.  Jackson,  637. 
Brazier's  case,  117,  254,  469. 
Bree  v.  Beck,  285. 
Breedon  v.  Gill,  254,  417,  435. 
Breeze  v.  Hawker,  308. 
Breton  v.  Cope,  269,  309,  456,  504,  507. 
Brett  V.  Beales,  188,  275,  276,  278,   455, 
529. 


XXll 


TABLE    OF    CASES. 


Brett,  w.  Ward,  294. 
Brewer  v.  Palmer,  656. 
Brewster  v.  Sewell,  538. 
Brickell  v.  Hulse,  413. 
Bridges  v.  Fisher,  423. 

V.  Hawkes,  819. 
Bridgman  v.  Holt,  795. 

V.  Jennings,  473. 
Briggs  V.  Aynsworth,  609. 
Bright  V.  Eynon,  798. 
Bringloe  v.  Goodson,  178,  511. 
Brindley  v.  Woodhouse,  545. 
Brisco  V.  Lomax,  49,  186,  408,  619,  721. 
Briscoe  v.  Stephens,  359. 
Bristol  (Governors  of  Poor  of)  v.  Wait, 

539. 
Bristow  V.  Sequeville,  176. 
Bristowe  v.  Faircloiigh,  334. 
Brittain  v.  Kinnaird,  321. 
Brockbank  v.  Anderson,  144. 
Brodie  v.  St.  Paul,  650. 
Bromfield  i\  Jones,  626. 
Brook  V.  Carpenter,  328. 
V.  Middleton,  805. 
Brooks  V.  Warwick,  781. 
Brough  V.  Parkings,  738. 

V.  Perkins,  738. 
Broughton  v.  Randall,  737. 
Brounker  (Lord)  v.  Atkins  (Sir  R.),  330. 
Brown  v.  Brown,  120,  128. 

V.  Bullen,  348,  379,  401. 

V.  Capel,  308. 

V.  Fox,  -130. 

V.  Giles,  237. 

V.  Langley  660,  670,  689. 

V.  M'Kinnally,  348. 

V.  Murray,  606,  609. 

V.  Philpot,  592. 

V.  Ricks,  736. 

V.  Selwin,  668,  670. 

V.  Thompson,  715,  738. 

V.  Thornton,  295. 

V.  Woodman,  542,  543,  544. 

V.  Wootton,  342. 
Brown's  case,  419,  421. 
Brownsword  v.  Edwards,  204,  364. 
Bruce  v.  Hurley,  467. 

V.  Wait,  358,  402. 
Bruin  v.  Knott,  736. 
Brune  v.  Thompson,  483. 
Bryan  v.  WagstalF,  555. 
Buchanan  v.  Kinning,  640. 

V.  Ruckcr,  349,  354,  355,   399, 
402,  740. 
Buckhouse  v.  Crosljy,  725. 
Buckinghamshire    (Karl   of)   v.    Ilobart, 

714. 
Buckler  V.  .Millcrd,  652. 
Buckley  v.  Smith,  513. 
Buckmaster  v.  Ilarrop,  C64. 
Bulkeley  v.  Butler,  791,  794,  797. 
Bullen  V.  Michel,  285,  309,  523,  528,  546, 

549,  579,  792. 
Bunbury  v.  Matthews,  646,  740. 


Bunter  v.  Warre,  143. 
Bunting  v.  Lepingwell,  375. 
Burdett  v.  Colman,  77. 
Burdon  v.  Ricketts,  316,  364. 
Burgess  v.  Langley,  805. 
Burgess's  case,  678. 
Burghert  v.  Angerstein,  299. 
Burkitt  V.  Blanshard,  450,  641. 
Burleigh  v.  Stibbs,  508,  564,  578. 
Burley  v.  Bethune,  763. 
Burnand  v.  Nerot,  261,  295. 
Burnett  v.  Lynch,  508,  544,  566. 
Burrell  v.  Nicholson,  59(;,  599. 
Burridge  s.  Essex  (Earl  of^,  406. 
Burrough  v.  Martin,  180,  306. 
Burrows  v.  Jemino,  352,  380,  381. 
V.  Lock,  511. 
V.  Unwin,  764. 
Burt  V.  Walker,  412,  514,  515. 
Burton  v.  Griffiths,  780. 
V.  Hinde,  131. 
V.  Payne,  553. 
V.  Plummer,  180,  183,  184. 
Bushell's  case,  368. 
Butcher  v.  Jarrat,  561. 

V.  Stewart,  709. 
Butcher  and  Alworth's  case,  257. 
Butcher's  Company  v.  Jones,  144. 
Butler  V.  AUnut,  541. 

V.  Carver  and  others,  226. 

V.  Dorant,  807. 

V.  Ford,  646,  647. 

V.  Moore,  40. 
Butler's  case,  562,  591,  594. 
Buxton  V.  Cornish,  656. 
V.  Mingay,  771. 
Byam  v.  Booth,  430,  431. 
Byrne  v.  Harvey,  455,  557. 
Bywater  v.  Richardson,  655,  708. 

Cadby  v.  Martinez,  359. 

V.  Barlow,  622. 
Calcraft  v.  Gibbs,  801. 
Calder  v.  Rutherford,  585. 
Call  V.  Dunning,  505. 
Callander  v.  Dittrich,  334,  358. 
Calliard  v.  Vaughan,  423. 
Callow  V.  Hawle,  442. 
Calvert  v.  Bovill,  355,  381,  382. 

V.  Canterbury  (Archbishop  of), 

494. 
V.  Flower,  221.  224,  561. 
Camden,  v.  Anderson,  310. 
Cameron  v.  Lightfoot,  449. 
V.  Reynolds,  342. 
Campbell  v.  Hodgson,  660. 
V.  Rickards,  176. 
Fz  parte,  418. 
Campbell's  case,  789. 
Candell  v.  London,  781. 
Cannam  v.  Farmer,  590,  598. 
Cannell  v.  Curtis,  046,  647. 
Careless  v.  Careless,  679,  686. 
Carlile  v.  Eady,  143. 


TABLE    OF    CASES. 


XXlll 


Carlisle  (Mayor  of),  v.  Blamire,  564. 

Carnaby  v.  W^elby,  640. 

Carnarvon    (Lord)  v.  Villebois,  189,  278, 

287,  387,  453,  677,  759. 
Came  v.  Nicholl,  471. 
Carol  V.  Jeans,  644. 
Carpenter  v.  Buller,  461,  659. 

V.  Wall,  203,  214,  242. 
Carr  v.  Burdis,  565,  566,  568. 
V.  Heaton,  330. 
V.  Mostyn,  189,  287. 
Carruthers  v.  Graham  and  others,  429. 

V.  Sheddon,  692. 
Carstairs  v.  Stein,  804. 
Carter  v.  Boehm,  176. 
V.  Downish,  736. 
V.  James,  333,  340,  640. 
V.  Jones,  597. 
V.  Pearce,  119. 
V.  Pryke,  618. 
Cartwright  v.  Green,  204. 

V.  Vawdry,  687. 
Gary  v.  Abbott,  673. 

V.  Pitt,  174. 
Castleton  v.  Turner,  668,  670. 
Gates  V.  Hardacre,  204. 

V.  Winter,  551,  555. 
Catherwood  v.  Chabaud,  585,  590. 
Gator  V.  Stokes,  437. 
Catt  w.  Howard,  181,  580. 
Catteris  w.  Cowper,  817. 
Cattlin  V.  Barker,  216. 
Cavan  v.  Stewart,  356,  399,  402. 
Gave  V.  Mountain,  321,  369,  781. 
Gazenove  v.  Vaughan,  419,  420,  421. 
.Chad  V.  Tilsed,  697. 
Chadwick  ii.  Bunting,  457. 
Chambers  v.  Bernasconi,  419,  496. 
V.  Calfield,  804. 
V.  Robinson,  266,  449,  622. 
Champion  v.  Atkinson,  118,  619. 
Ghampneys  v.  Peck,  494,  495. 
Chandler  v.  Home,  199. 
Ghaney  v.  Payne,  398. 
Chanter  v.  Lesse,  100. 
Chapman  v.  Cowlan,  187,  290,  453. 
V.  Emden,  599. 
V.  Graves,  128. 
V.  Pointon,  103,  104. 
V.  Rawson,  602. 
V.  Smith,  285. 
V.  Walton,  176. 
Chappell  V.  Purday,  431,  444. 
Charlton  v.  Gibson,  702. 
Ghaurand  v.  Angerstein,  174,  701,  706. 
Chelsea  Waterworks    (Governor   of)  v. 

Cowper,  522. 
Cherry  v.  Hemming,  509. 
Chettle  V.  Pound,  260,  523. 
Chetwynd  v.  Lindon,  204. 
Cheyue  v,  Koops,  120. 
Gheyney's  (Lord)  case,  655,  669,  679. 
Chichester  v.  Phillips,  793. 
Christian  v.  Herwood,  142. 


Christie  v.  Secretan,  381. 

Christy  v.  Tancred,  330. 

Chuck  V.  Freen,  722. 

Churchill  (Lord)  v.  Hunt,  626. 

Clauricard's  case,  294. 

Charges  v.  Sherwin,  222,  337,  408,  415. 

Clark  V.  Bell,   135. 

V.  Dunsford,  809. 
V.  Mullick,  740. 
Clarke,  Iti  re,  737. 

V.  East  India  Company,  424. 

V.  Lucas,  126. 

V.  Savery,  168,  169. 

V.  Wilmot,  475. 
Clarkson  v.  Hanway,  674. 

V.  Woodhouse,  95,  523. 
Clay  V.  Stephenson,  426.  , 
Clayton  v.  Gregson,  653,  705,  707. 
V.  Lord  Nugent,  650,  663. 
Cleave  v.  Jones,  554,  614,  789. 
Clegg  V.  Levy,  175. 
Clements  v.  Scudamore,  736. 
Clerk  V.  Bedford,  493. 
Cleve  V.  Powell,  329,  337,  361. 
Cliff  w.  Gibbons,  666. 
Clifford  V.  Hunter,  196. 
V.  Parker,  500. 
V.  Turrell,  660,  674. 
Clifton  V.  Walrasley,  652,  701. 
Clinant  ».  Cooke,  725. 
Clinton  v.  Hooper,  706,  712,  714. 
Clothier  v.  Chapman,  49,  187. 
Cobbett  V.  Grey,  436,  446. 
Cochran  v.  Retberg,  701,'704. 
Cochrane's  (Lord)  case,  213. 
Cock  V.  Gent,  276. 
Coekman  v.  Mather,  314. 
Cocks  V.  Nash,  541,  544. 
Cocksedge  v.  Fanshaw,  797. 
Coe  V.  Westernham,  394. 
Coghlan  v.  Williamson,  513,519. 
Coker  v.  Farewell,  409. 
Colburn  v.  Dawson,  709. 
Cole  V.  Rawlinson,  669. 
Coleman  v.  Gibson,  780. 
Coles,  Ex  parte,  418. 
Collett  V.  Keith  (Lord),  581,  677. 
Collier  v.  Clark,  601. 

V.  Nokes,  228,  738. 

V.  Simpson,  176. 
Collins  V.  Bayntun,  568. 

V.  Blantern,  100,  675. 

V.  Carnegie,  457,  647,  740. 

V.  Maule,  545. 
Colling  V.  Treweek,  558,  561,  563. 
Colombine  v.  Penhall,  136. 
Colpoys  V.  Colpoys,  653,  689. 
Colt  V.  Button,  30,  31. 
Combe  v.  Pitte,  626,  627. 
Compagnon  v.  Martin,  626. 
Comptou  «'.  Chandless,  576. 
Connop  V.  Hayward,  579. 
Cooch  V.  Goodman,  508. 
Cood  V.  Cood,  297. 


XXIV 


TABLE     OF    CASES. 


Cook  V.  Field,  363. 
Cooke  V.  Bankes,  186,  304. 
V.  Blake,  640. 
V.  Booth,  700. 
V.  Fountain,  412,  415. 
V.  Lloyd,  299. 
V.  Loxley,  762. 

V.  Maxwell,  42,  192,  256,  267,  644. 
V.  Nethercote,  199. 
V.  Riddelieu,  712. 
V.  Sholl,  345,  379. 
V.  Stocks,  565. 
V.  Tanswell,  542,  570,  571. 
Cooke's  case,  207,  208. 
Coombs  V.  Coether,  186,  283,  309. 
Cooper  V.  Gibbons,  569,  749. 
V.  Smith,  582. 
V.  South,  310. 
?).  Wakley,  597. 
Coote  V.  Boyd,  714. 
Cope  V.  Bedford,  294. 
V.  Cope,  299. 

V.  Thames  Haven  Dock  Company, 
228,  609. 
Copeland  v.  Stanton,  420. 

V.  Watts,  112,  748. 
Copeland  v.  Toulmin,  617. 
Corbet  v.  Corbet,  411,  431,  432. 
Corfield  v.  Parsons,  789. 
Cornfoot  v.  Fowke,  678. 
Corsar  v.  Reed,  791,  807. 
Corsen  v.  Dubois,  112. 
Cort  V.  Birkbeck,  386,  421,   798. 

V.  St.  David's  (Bishop  of),  791. 
Cossens,  Ux parte,  re  Worrall,  205. 
Cotton  V.  James,  95,  597. 
Couch  V.  Goodman,  740. 
Coule  V.  Braham,  486. 
Couling  V.  Coxe,  639. 
Courteen  v.  Touse,  169. 
Cowan  V.  Braidwood,  354,  358. 
Cowling  V.  Ely,  442. 
CowHshaw  v.  Cheslyn,  640. 
Cowper's  case,  863. 
Cox  V.  Allingham,  395. 
V.  Glue,  699. 
V.  Kitchen,  802, 
V.  Keid,  782. 
Coxe  V.  Wirrall,  781. 
Cragg  V.  Norfolk,  577,  578. 
Craig  V.  Fenn,  601. 
Crank  v.  Frith,  512. 

Crawford  k  Lindsay  Peerage  case, 543, 549. 
Crease  t'.  Barrett,  145,  189,  190,444,480. 

485,  800. 
Crepps  V.  Durden,  309,  401. 
Crerer  v.  Sodo,  G13. 
Cripps  V.  Yates,  598. 
CrLsp  V.  Anderson,  541,  509. 
Croanc  v.  Odell,  689. 
Crokatt  v.  .Jones,  2;'5. 
Crook  V.  Dowling,  266. 
Crooke  v.  Dowling,  447. 
Crosby  v.  Iletheringlon,  736. 


Crosby  v.  Leng,  401. 

V.  Percy,  514,  517. 
Cross  V.  Eglin,  706. 
V.  Salter,  385. 
Crotty  V.  Price,   796. 
Croughton  v.  Blake,  292,  293,  386,  524. 
Crowley  v.  Page,  240,  241,  612. 
Crowther  v.  Solomons,  541,  570. 
Croydon  Hospital  v.  Farley,  510. 
Crozer  v.  Pilling,  763. 
CuflFr.  Penn,  663,  725. 
Culley  V.  Taylerson,  793. 
Cundell  v.  Pratt,  412. 
Cunliffe   v.   Sefton,   514,    516,   518,    519, 

521. 
Curling  v.  Robertson,  311. 
Currie  v.  Child,  512. 
Curry  v.  Walter,  194. 
Curtis  V.  Greated,  731. 

V.  Wheeler,  585,  605. 
Cussons  V.  Skinner,  504,  517,  529. 
Cuthbert  v.  Peacock,  713. 
Cutter  V.  Powell,  704. 

Da  Costa  v.   Villa  Real,  325,  349,   360, 

375. 
Dacy  V.  Clinch,  435. 
D'Aguilar  v.  Tobin,  802. 
Daintree  v.  Brocklehurst,  591. 

V.  Hutchinson,  710. 
Dalby  f.  Hirst,  711. 
Dalgleish  v.  Hodgson,  382. 
Dalison  v.  Stark,  656,  729,  731. 
Dalrymple  v.  Dalrymple,  175. 
Dandridge  v.  Corden,  204. 
Dane  v.  Kirkwell  (Lady),  406. 
Darbishire  v.  Parker,  776,  777,  780. 
Darrose  v.  Newbott,  798. 
Dartmouth  (Countess  of  )i>.  Roberts,  441, 

443,  447. 
Daintnall  v.  Howard,  447,  448. 
Davenport  v.  Tyrrell,  796. 
Davidson  v.  Cooper,  501. 
Davies  v.  Davies,  220,  227,  261,  388,  423, 
448. 
V.  Humphreys,  476. 
V.  Lewis,  187. 
f.  Lowndes,   321,   322,   439,    738, 

792,  794,  795. 
V.  Morgan,  422,  503. 
V.  Pearce,  488. 
V.  Waters,  112. 
V.  Williams,  688. 
Davis  V.  Capper,  781. 
V.  Dale,  196. 
V.  Dinwoody,  138. 
V.  Lloyd,  300,  498. 
V   Morgan,  188,  131. 
V.  Russell,  782. 
V.  Spurling,  444. 
V.  West,  328,  379. 
V.  Williams,  394. 
Payroll  v.  Glasscock,  610. 
Decan  v.  Fuller,  539. 


TABLE    OF    CASES. 


XXV 


Deady  v.  Harrison,  441. 

De  Beranger's  case,  167. 

Debeze  v.  Man,  714. 

De  Fleming  (Lady)  v.  Simpson,  122. 

Delamotte  v.  Lane,  G19. 

Delamotte's  case,  238. 

Deluney  v.  Mitcliell,  606. 

De  Medina  v.  Grove,  348. 

Denn  v.  Barnard,  394. 

V.  Fulford,  261,  266. 
V.  Roalvc,  688. 
V.  Spray,  453. 
V.  Pnrvis,  628. 
Derby's  (Lord)  case,  405. 
De  Rome  Fairlie.  SeeDe  Rosne  y.  Fairlie. 
De  Rosne  v.  Fairlie,  118,  145. 
De  Rutzen  (Baron)  v.  Farr,  482,  497,  800, 

801. 
De  Sailly  v.  Morgan,  238. 
De  Symonds  v.  De  la  Cour,  122. 
Devon  v.  Jones,  439. 
Dew  V.  Clarke,  428. 
Dewar  v.  Purdy,  806,  809. 
Dewdney  v.  Palmer,   145. 
Deybel's  case,  738. 
Dicas  V.  Lord  Brougham,  369,  737. 
Dickinson  v.  Shee,  168,  198. 
Dickson  V.  Evans,  590. 
V.  Fisher,  672. 
V.  Lodge,  464. 
Digby  V.  Atkinson,  761. 
V.  Stedman,  493. 
Dillon  V.  Harpur,  737. 
V.  Parker,  796. 
Dimes  v.  Grand  Junction  Canal  Co.,  343. 
D'Israeli  v.  Jewett,  305. 
Ditchburn  v.  Spracklin,  310. 
Dixon  V.  Vale,  206. 
Dobson  V.  Bell,  737,  738. 
Dodd  V.  Norris,  205. 
Dodsworth  v.  Anderson,  771. 
Doe  V.  Allen,  672,  783. 

V.  Amej^,  761. 

d.  Arundel  v.  Fowler,  299. 

V.  Ashley,  688,  692. 

d.  Askew  v.  Askew,  308. 

d.  Bacons  v.  Brydges,  276,  326. 

V.  Barnes,  299,  604,  647. 

d.  Barrett  v.  Kempt,  620. 

d.  Bather  v.  Brayne,  506,  605,  610. 

d.  Beach  v.  Jersej'  (Earl  of),  691. 

V.  Beckett,  488. 

d.  Bengo  v.  Nicholls,  136. 

V.  Benjamin,  802. 

d.  Bennington  v.  Hall,  454. 

V.  Benson,  713. 

V.  Beviss,  696,  699. 

V.  Beyon,  522,  525,  684. 

V.  Bingham,  132,501,502,503,577,595. 

V.  Bingham  v.  Cartvvright,  729. 

V.  Bird,  505. 

d.  Bland  ».  Smith,  436. 

d.  Blayney  v.  Savage,  297,  488. 

V.  Bluck,  360. 


Doe  d.  Codenham  v.  Colcombc,  483. 
V.  Bowdlier  v.  Owen,  525. 
V.  Bower,  688. 
V.  Bray,  298,  604. 
d.  Bridger  v.  Whitehead,  588. 
d.  Brown  «.  Brown,  667,  693. 
V.  Brown,  646. 
V.  Burdett,  523. 
V.  Burt,  691. 
V.  Burton,  475. 

V.  Cartwright,  313,  481,  656,  731. 
d.  Chandler  v.  Ford,  100. 
d.  Chichester  v.  Oxenden,  692. 
V.  Clarke,  118. 
V.  Cleveland  (Marquis),  565. 
d.  Clifford,  577. 
d.  Cockell,  571. 
V.  Cole,  648. 

d.  Corbett  v.  Corbett,  549. 
d.  Counsell  v.  Caperton,  610. 
d.  Coyle  v.  Cole,  543. 
d.  Croyden   (Churchwardens   of)  v. 

Cook,  454. 
d.  Daniel  v.  Coulthred,  471, '487. 
V.  Date,  204,  214. 
V.  Davis,  754. 
d.  Davies  v.  Davies,  511. 
W.Derby  (Earl   of),   328,   329,   409, 

558. 
V.  Dobell,  761. 
V.  Dring,  669. 
V.  Durnford,  504,  507. 
V.  Egremont  (Earl  of),  204. 
d.  Egremont  (Earl  of)  «.  Date,  111. 
d.  Egremont  v.   Pulmau,  565. 
d.  Egremont  (Bank  of)  v.  Chambers, 

504. 
V.  Errington,  331. 
V.  Evans,  518,  760. 
d.  Flemington  v.  Somerton,  558. 
d.  Foster  v.  Sisson,  188,  189. 
d.  Foster  v.  Williams,  132. 
V.  Freeman,  454,  455. 
V.  Fyldes,  669,  671. 
d.  Grains  v.  Rouse,  684,  686. 
d.  Gallop  V.  Vowles,  475. 
V.  Galloway,  692. 
d.  Garrod  v.  Oley,  454. 
V.  Gartham,  403. 
V.  Gatacre,  299. 
d.  Gilbert  v.  Ross,  413,  430,  503,  540, 

544. 
d.  Gord  V.  Needs,  670,  681. 
V.  Gore,  757,  760. 
V.  Gosely,  607. 
d.  Graham,  v.  Hawkins,  482. 
V.  Grazebrook,  531,  590. 
V.  Green,  489. 
V.  Gunning,  394. 
V.  Guy,  557. 
V.  Haddon,  371. 
V.  Harcourt,  287. 
V.  Hawthorn,  595. 
V.  Hellier,  453. 


XXVI 


TABLE     OF    CASES. 


Doe  V.  Heming,  567. 

V.  Hiscocks,  650,  655,  680,  681,    685, 

690,  691. 
d.  Hogg  V.  Tindale,  615. 
V.  Home,  460. 
V.  Hubbard,  686,  688,  694. 
V.  Huddart,  327,  545. 
d.  Human  v.  Pettett,  471. 
V.  Huthwaite,  690. 
V.  Jackson,  628. 
d.  Jenkins   v.  Davies,   19,    190,    788, 

789. 
V.  Jersey  (Earl  of),  794. 
V.  Johnson,  688. 
d.  Johnson  v.  Johnson,  514. 
V.  Keeling,  292,  525,  526. 
V.  Kempt,  790. 
V.  Kilner,  545,  575. 
d.  Kinglake  v.  Beviss,  480. 
d.  Knight  v.  Nepean,  77,  761. 
V.  Lakin,  290,  473. 
V.  Langton,  713. 
d.  Lawrence  v.  Shawcross,  808. 
V.  Lea,  659. 

V.  Lewis,  491,  531,  696,  604. 
d.  Linsey  v.  Edwards,  490. 
V.  Lloyd,  261,  299. 
V.  Loscombe    i'.    Clifford,    111,    505, 

545. 
V.  Lyford,  693. 
v.  Manning,  784. 
V.  Martin,  555,  689. 
V.  Mason,  453,  577,  758. 
V.  Mee,  455. 
V.  Mobbs,  608. 
d.  Moore  v.  Williams,  544. 
V.  Morgan,  694. 
V.  Morris,  551,  564. 
V.  Munro,  673. 
V.  Nepean,  593. 
d.  Nepean  v.  Budden,  100. 
d.  Norton  v.  Webster,  143,  791. 
d.  Oldham  v.  Wolley,  521,  761. 
d.  Orrel  v.  Mado.x,  299. 
V.  Owen,  540. 

d.  0.xenden  v.  Chichester,  671,  693. 
d.  Padwick  v.  Skinner,  498. 
V.  Palmer,  761. 
d.  Patteshall  v.  Turford,  495. 
V.  Paul,  513. 

d.  Pearson  v.  Ries,  551,  553. 
V.  Penry,  800. 

V.  Perkins,  180,  183,  184,  185. 
V.  Perratt,  687. 
d.  Perry  v.  Newlor,  202. 
V.  Phillips,  292,  525,  526. 
d.  Phillips  V.  Evans,  757. 
V.  Powell,  514. 
V.  Pulman,  508,  524,  577. 
V.  Rawlins,  477. 
d.  Richards  v.  Lewis,  534,  553. 
d.  Richardson  v.  Watson,  CSS. 
V.  Rickarby,  471. 
V.  Ries,  562. 


Doe  d.  Roberts  v.  Roberts,  796. 
V.  Robson,  465,  475. 
V.  Ross,  540,  542. 
V.  Rosser,  349,  399. 
d.  Rowlandson  v.  Wainwright,  544. 
V.  Samples,  525. 
V.  Sandham,  774. 
V.  Seaton,  313 

d.  Shallcross  v.  Palmer,  684. 
d.  Shearwood  v.  Pearson,  731. 
V.  Sisson,  619. 
d.  Small  V.  Allen,  672. 
V.  Smart,  604. 
V.  Smith.  772. 
V.  Spence,  777. 
d.  Spencer  v.  Beckett,  489. 
d.  Spicer  v.  Lea,  708. 
d.  Spilsbury  v.  Burdett,  521. 
V.  Spitty,  556. 
V.  Stacy,  482. 

d.  Stansbury  v.  Arkwright,  314. 
d.  Stephenson  v.  Walker,  252. 
V.  Stillwell,  758. 

Strode  v'.  Seaton,  327,  343. 

Sturt  V.  Mobb's,  482. 

Suckermore,  174. 

Sybourn,  439. 

Taniere,  761. 

Tatham  v.  Cattermore,  501. 

Tatham   v.   Wright,    53,   89,    162, 

340,  403. 
Templeton  v.  Martin,  688. 
Teynhara  (Lord)  v.  Tyler,  800. 
Thomas,  48,  190. 
Thompson  v.  Hodgson,  571. 
Thynne,  483. 
Trapaud,  542. 
Tucker,  604. 
Tyler,  327. 
Ulph,  666. 
Wainwright,  491,   508,   543,    568, 

642. 
Walker  v.  Scephenson,   252,  253, 

512. 
Wartney  v.  Grey,  113,  563. 
Waterton,  577. 
Webber,  329,  492. 
Webster,  657,  592. 
Wellard  v.  Hawthorn,  673. 
V.  Wellsman,  327. 
V.  Westlake,  654,  688,  692. 
d.  Wetherell  «>.  Bird,  573. 
d.  Wheeldon  v.  Paul,  519,  520. 
V.  Whitefoot,  542. 
V.  Wilde,   132. 
V.  Wilford,  691. 
V.  Wilkins,  567. 
d.   William   IV.  (King)   v.  Roberts, 

270,  283,   287. 
V.  Williams,  487,  489. 
(/.  Williams  v.  Lloyd,  100,  295,  577. 
d.  Willis  V.  Birchmore,  132. 
V.  Wilson,  785. 
d.  Winnell  v.  Broad,  617. 


d. 


d. 


TABLE    OF    CASES. 


XXVll 


Doe  V.  Wolley,  523. 

V.  Wood,  2GG. 

d.  Wood  V.  Morris,  731. 

d.  Wood  V.  Wilkins,  303. 

d.  Woodmas  v.  Mason,  259,  739. 

d.  Worcester  School  (Trustees  of)  v. 
Rowlands,  602. 

V.  Wright,  327,  433,  475. 
Donn  V.  Lippman,  358. 
Donaldson  v.  Foster,  707. 

V.  Thompson,  380,  382. 
Doncaster  (Mayor  of)  v.  Day,   191,  409, 

433. 
Donnison  v.  Elsely,  187. 
Doran's  case,  33,  507. 
Douglas  V.  Forrest,  349,  356,  357. 

Peerage  case,  847,  899. 
Downes  v.  Moreman,  269. 
Dowsett  V.  Sweet,  686,  690,  693. 
Doxon  V.  Haigh,  543,  565,  570. 
Drable  v.  Donner,  558. 
Drake  v.  Marryat,  295. 

V.  Smyth,  290,  302. 
Drakeford  v.  Hodges,  661. 
Draper  v.  Garratt,  626,  629. 
Dresser  v.  Clarke,  128 
Drew  V.  Durnbough,  553. 
Drinkwater  v.  Porter,  187,  188. 
Driver  v.  Thompson,  808. 
Druce  v.  Dennison,  688. 
Drummond  v.  x\ttorney-General,  653. 
Du  Barre  v.  Livette,  40. 
Duberley  v.  Gunning,  804. 
Du  Best  V.  Beresford,  43. 
Ducker  v.  Wood,  804. 
Dufferin  and  Clandeboy's  (Lord)  claim, 

738. 
Dufterin's  (Lord)  case,  282. 
Duins  V.  Donovan,  299,  300. 
Dunbar  v.  Harvie,  296. 

V.  Roxburghe  (Duchess),  699. 
Duncan  v.  Scott,  433. 
Dunford  v.  Trattles,  639. 
Dunn  V.  Aslett,  236,  249. 
V.  Fulford,  432. 
V.  Murray,  335. 
Dunn's  case,  622. 

Dunraven  (Lord)  v.  Llewellyn,  187,  190. 
Dunstan  v.  Tresider,  639,  641. 
Dupays  v.  Shepherd,  279. 
Durham  (Bishop  of)  v.  Beaumont,  252. 
Dutton  V.  Colt,  419. 
Dutton's  case,  420,  421,  430. 
Dyson  v.  Wood,  396. 
Dwyer  v.  Collins,  564. 

Earl  V.  Lewis,  290,  291,  292,  526. 

East  V.  Chapman,  206,  214. 

Eastern    Union     Railway    Company    v. 

Symonds,  552. 
Eastmure  v.  Laws,  336,  337. 
Easton  v.  Pratchett,  592. 
Eaton  V.  Southby,  769. 
Eccleston  v.  Petty,  442,  569. 


Eden  v.  Blake,  656. 

V.  Chalkill,  574. 
Edger  v.  Knapp,  802. 
Edie  V.  East  India  Company,  702. 
Edinburgh  v.  Crudell,  507. 
Edmonds  v.  Challis  and  others,  571. 
V.  Groves,  592. 
V.  Lowe,  121. 
V.  Rowe,  31. 
V.  Walker,  169. 
V.  Walter,  243. 
Edmondson  v.  Machell,  800. 
Edmondstone  v.  Webb,  643. 

V.  Plaisted,  438. 
Edmunds  v.  Downes,  721. 
V.  Groves,  -^51. 
Edwards  v.  Cooper,  656. 

V.  Evans,  145,  801. 
V.  Jevons,  709. 
V.  Matthews,  596. 
V.  Sherratt,  605. 
Egremont  (Earl  of)  v.  Saul,  799. 
Ehrensperger  v.  Anderson,  558. 
Ekins  V.  Macklish,  703. 
Eiden  v.  Keddell,  394. 
Elkin  V.  Janson,  588. 
Elliott  V.  South  Devon  Railway  Company, 

799. 
Ellis  V.  Abrahams,  617. 

V.  Watson,  311. 
Ellison  V.  Cookson,  714. 

V.  Isles,  617. 
Elston  V.  Wood,  442. 
Elton  V.  Larkins,  202,  505,  573. 
Ely  (Dean,  &c.)  v.  Caldecott,  480. 

(Dean  of)  v.  Stewart,  522,  523,  525. 
Emden's  case,  448. 
Enfield  v.  Hills,  796. 
England  v.  Bourke,  363,  385. 
Engstrom  v.  Brightman,  766. 
Entick  V.  Carrington,  569. 
Erskine  v.  Murray,  736. 
Estwick  V.  Caillaud,  784. 
Evans  v.  Birch,  590. 
V.  Curtis,  516. 
V.  Getting,  315. 
V.  Ogilvie,  639. 
V.  Pratt,  705. 

V.  Rees,  186,  292,  386,  525. 
V.  Sweet,  554. 

V.  Taylor,  288,  289,  407,  408. 
V.  Williams,  122. 
V.  Yeatherd,  120. 
Everett  V.  Lowdham,  199. 

V.  Youells,  335,  805,  806. 
Everingham  v.  Roundell,  543. 
Everth  v.  Hannam,  381. 
Ewbank  v.  Nutting,  615. 
Ewer  V.  Ambrose,  227,  245,  249,  251,  423, 

432,  441,  447,  448. 
Exeter  (Marquis  of)  v.  Exeter  (Marchion- 
ess of),  676. 
(Mayor  of)  i'.  Warren,  484. 
Ux  parte  Byne,  113,  114. 


XXVlll 


TABLE     OF    CASES. 


Ex  parte  Lyne,  114. 

Roscoe,  103. 

Tillotson,  104. 
Ej're  V.  Palsgrave,  270. 

Fabrigas  v.  Mostyn,  795. 
Facey  v.  Hurdom.  774. 
Fachina  v.  Sabine,  29,  31. 
Fagan  v.  Dawson,  388. 
Fairtitle  d.  Mytton  v.  Gilbert,  100. 
Faith  V.  M'Intyre,  124,  613. 
Falconer  v.  Hanson,  412,  580. 
Falmouth  (Earl  of)  v.  Moss,  112,  569. 
(Lord)  V.  Roberts,  501,  517. 
Fassett  v.  Brown,  518,  529,  530, 
Faulder  v.  Silk,  380,  406. 
Fazakerley  v.  Wilt'shire,  738. 
Fern  v.  Filica,  641. 
Fellingham  v.  Sparrow,  115.  145. 
Fenn  v.  Granger,  131. 

V.  Griffith,  651,  656,  731. 
V.  Johnson,  604,  610. 
Fennell  i'.  Tait,  105. 
Fenner  v.  Mears,  657. 
Fentum  v.  Pocock,  660. 
Fenwick  v.  Bell,  175. 

V.  Reed,  522. 
Fenwick's  (Sir  John)  case,  35. 
Ferguson  v.  Mahon,  353,  356,  402. 
Feme  d.  Pewtress  v.  Granger,  132. 
Fernley  v.  Worthington,  439,  539. 
Ferrand  v.  Milligan,  802. 
Ferrers  v.  Arden,  323. 

V.  Wignal,  759. 
Field  V.  Beaumont,  110,  112. 

V.  Woods,  614. 
Fielder  v.  Ray,  731. 
Filmer  v.  Gott,  673. 
Finch  V.  Finch,  204. 
Finney  v.  Finney,  658,  666. 
Firkin  v.  Edwards,  556. 
Fisher  v.  Kitchinghman,  267,  390. 
V.  Lane,  358,  396,  397. 
V.  Ogle,  381,  382. 
Fishmongers'  Company  v.  Dimsdale  and 

others,  506. 
Fitz  V.  Rabbits,  531. 
Fitzgerald  v.  Elsee,  511,  518,  530. 
V.  Enstace,  577. 
V.  Fauconberge,  667. 
V.  Fitzgeralil,  573. 
Fitzwalter's  (Lord)  case,  547. 
Flad  Oyen  case  (Tiie),  382. 
Fletcher  v.  Braddyll,  174. 

V.  Grosbie,  616. 

V.  Froggatt,  582. 

V.  Gillespie,  716. 

V.  Greenwell,  131. 
Flindt  V.  Atkins,  399. 
Flower  v.  V'oung,  310,  311. 
Folkes  V.  Chadd,  173,  174. 
Fonnereau  v.  Poyntz,  686. 
Fonsick  v.  Agar,  412. 
Forbes  v.  Wale,  524. 


Ford  V.  Elliott,  623. 

V.  Grey  (Lord)  441,  577. 
V.  Hopkins,  703. 
V.  Yates,  665. 
Fordyce  v.  Willis,  721. 
Forman  v.  Dawes,  275. 
Forrester  v.  Pigou,  118,  119. 
Forty  V.  Imber,  628. 
Foster  v.  Bonner,  435. 
V.  Compton,  390. 
V.  Jolly,  66Q. 
V.  Munt,  713. 
V.  Pointer,  551,  558. 
Fotheringham  v.  Greenwood,  118. 
Fountain  v.  Boodle,  763. 
Fowler  v.  Coster,  595,  599,  602. 

V.  Fowler,  713. 
Fox  V.  Frith,  660. 
Foxcroft  V.  Devonshire,  784. 
France  v.  Lucy,  560. 
Francia's  case,  62. 
Francisco  v.  Gilmore,  424. 
Frank  v.  Frank,  380,  601. 

V.  Smith,  406. 
Frankes  v.  Gary,  481. 
Frankland  v.  M'Gusty,  356,  402. 
Franklin's  case,  282. 
Eraser  v.  Hopkins,  310. 
Free  v.  Hawkins,  660. 
Freeman  v.  Arkell,  193,  539. 

V.  Cooke,  100,  343,  462,  762. 
V.  Phillips,   189,   190,  421,   422, 

503. 
V.  Steggal,  571. 
Fremoult  v.  Dedire,  400. 
Friedlander  v.  London  Assurance  Com- 
pany, 245,  248. 
Friend's  case,  204,  206,  253. 
Frontine  v.  Frost,  590. 
Frost  V.  Holloway,  212. 
Fry  V.  Hill,  774,  775. 
V.  Moncton,  605. 
V.  Wood,  409,  410,  522,  525. 
Fuller  V.  Fotch,  270,  306,  369,  379,  398. 
V.  Pattrick,  566. 
V.  Prentice,  103,  104. 
Furley  v.  Wood,  713. 
Furly  V.  Newnham,  423. 
Furneaux  i'.  Hutchins,  189,  619. 
Furness  v.  Cope.  464,  645. 
Fursden  v.  Clogg,  474,  480. 
Fyler  v.  Newcombe,  127. 
Fyson  v.  Kcmpp,  271. 

Gahan  v.  Maingay,  349. 
Gainsford  v.  Grammar,  572. 
Galbraith  v.  Neville,  347,  351. 
Gale  V.  Capern,  478. 

V.  Lewis,  639. 

V.  Williamson,  660,  674. 
Galway  v.  Baker,  794. 
Gancr  v.  Lanesborough  (Lady),  400. 
Gape  V.  Handley,  097. 
Garden  v.  Cresswell,  104. 


TABLE     OF     CASES. 


XXIX 


Gardiner  v.  Crosedale,  627. 
V.  Gray,  GGl. 

Gardener  Peerage  case,  88,  4G8. 

Garland  v.  Scoones,  390. 

Garnett  v.  Ferraud,  321,  404. 

Garnons  v.  Swift,  541,  570. 

Garrell  v.  Lister.  395,  5G5. 

Garrells  v.  Kensington,  380. 

Garricli  r.  Williams,  261,  575. 

Garth  v.  Howard,  763. 

Gascoyne  l\  Smith,  800. 

Gathercole  v.  Miall,  531,  537. 

Gaunt  V.  Wainman,  331,  365. 

Geach  v.  Ingall,  596,  601. 

Geary  v.  Hoskins,  456. 

General   Steam  Navigation  Company  v. 
Guillon,  354. 

George  v.  Surrey,  530. 

Gerish  v.  Chartier,  622. 

Gervis  v.   Grand   Western   Canal    Com- 
pany, 371. 

Gerers  v.  Mainwaring,  126. 

Geyer  v.  Agiiilar,  378,  380. 

Gibbons  r.  Powell,  555,  557. 

Gibbs  V.  Pike,  736,  802. 
V.  Ralph,  335. 
V.  Rumsey,  713. 
V.  Sunaley,  804. 

Gibson  v.  Gell,  689. 

V.  Hunter,  623,  791,  797,  798. 
V.  Macarty,  332,  364. 

Gilbert  v.  Stanislaus,  628. 

Giles  V.  Powell,  237,  605. 
V.  Smith,  118,  550. 

Gill  V.  Shelley,  687. 

Gillies  V.  Smither,  570. 

Girdlestone  v.  M-Gowran,  133. 

Girdwood's  case,  786. 

Gist  V.  iMason,  802. 

Glascock  V.  Warren,  577. 

Gleadow  v.  Aikin,  474,  478. 

Glossop  V.  Pole,  289,  408. 

Glubb  V.  Edwards,  514, 

Glynn  v.  Bank  of  England,  411,  479. 
V.  Houston,  234. 

Goblet  V.  Beechy,  654,  709. 

Goddard's  case,  343,  640,  720. 

Godefroy  v.  Jay,  267. 

Godfrey  v.  Davis,  687. 

V.  Macaulej',  280. 
V.  Norris,  513. 

Godfrey's  (Sir  Edmondbury)  case,  858. 

Godmanchester,  Bailifi's.  &c.  v.  Phillips, 
124,  131,  699. 

Godson  V.  Smith,  335. 

Gold  and  Silver  Wire-drawers  (Company 
of)  V.  Hammond,  118. 

Goldie  V.  Shuttleworth,  572. 

Golding  V.  Crowle,  781. 
V.  Nias,  133. 

Goldshede  v.  Swan,  709. 

Goldsmith  v.  Sefton  (Lord),  804. 

Golightly  V.  Jellicoe,  335. 

Goodered  v.  Armour,  561. 


Goodhay  v.  Hendry,  143. 
Goodier  v.  Lake,  531,  541,  542. 
Goodinge  v.  Goodinge,  689. 
Goodman  v.  Cotherington,  763. 
Goodright  v.  Corder,  785. 

V.  Moss,  441. 
Goodtitle  v.  Braham,  604. 

V.  Chandos  (Duke  of),  475. 
V.  Otway,  715,  716. 
d.  Revett  v.  Braham,  172,  610. 
d.  Richardson  v.  Edmonds,  670, 

671. 
V.  Saville,  553. 
V.  Southern,  691,  692. 
Goodwin  v.  West,  104. 
Gordon  v.  Secretan,  565,  567. 
Gordon's  case,  87,  551,  646,  647. 
Gorham  v.  Thompson,  280. 
Gorton  v.  Dyson,  395. 
Goslin  V.  Wilcock,  803. 
Goss  V.  Nugent  (Lord),  655,  724,  725. 
V.  Quinton,  580. 
V.  Tracy,  411,  513. 
V.  Watlington,  481. 
Gough  V.  Cecil,  519,  520. 
Gould  V.  Oliver,  232,  450,  641. 
Graham  v.  Dyster,  224,  561. 

V.  Hope,  280. 
Grant  v.  Astle,  628. 
V.  Gould,  371. 
V.  Jackson,  443. 
V.  Maddo.x,  702. 
V.  Moser,  738. 
Granville  v.  Beaufort  fDuchess  of),  663. 
Grater  v.  Collard,  799.' 
Graves  v.  Key,  677,  718. 
Gray  v.  Cookson,  369,  370,  398. 
Graysbrook  v.  Fox,  451. 
Greaves  v.  Ashlin,  664,  665. 
Green  v.  Gatewick,  410,  414. 
V.  Hewett,  287. 
V.  New  River  Company,  322. 
V.  Pronde,  272,  286. 
V.  Sutton,  128. 
V.  Waller,  739. 
V.  Weston,  660,  728. 
Greenshields  v.  Crawford,  448,  521. 
Gregory  v.  Brunswick   (Duke   of),  452, 
613. 
V.  Tavernor,  184,  229. 
V.  Tuffs,  802. 
V.  Williams,  285. 
Grellier  v.  Neale,  511,  518,  523,  529. 
Greswolde  v.  Kemp,  607. 
Grevelle  v.  Atkins,  675. 

V.  Chapman,  176. 
V.  Lamb,  232,  236. 
V.  Stulz,  426. 
Grew  V.  Bevan,  784. 

V.  Hill,  639. 
Grey  v.  Smith,  583. 

V.  Smithyes,  504,  716,  730. 
Grey's  (Lord)  case,  792. 
Griffith  V.  Moore,  577. 


XXX 


TABLE    OF    CASES. 


Griffiths  V.  Payne,  623. 

V.  Williams,  572. 
Griffits  V.  Ivery,  202. 
Groenvelt  v.  Berwell,  369. 
Groom  v.  Bradley,  137. 
V.  "Watson,  136. 
Groome  v.  Forrester,  370. 
Grove  v.  Ware,  559. 
GryflFyth  v.  Jenkins,  737. 
Gnest  V.  Elwes,  637. 
Guilliam  v.  Hardy,  257. 
Guinness  v.  Carroll,  349,  355. 
Gully  V.  Exeter   (Bishop  of),   441,   486, 

531. 
Gunnis  v.  Erhart,  556,  664. 
Gunston  v.  Downs,  129. 
Gurney  v.  Langlands,  174. 
Gurr  V.  Rutton,  43. 
Gutteridge  v.  Smith,  807. 
Guy  V.  Gregory,  640. 
Gwinnett  v.  Phillips,  628. 
Gwynne  )).  Sharpe,  617,  640. 
Gyftbrd  v.  Woodgate,  437,  718. 
Gyles  V.  Hill,  271. 

Haddow  v.  Parry,  485. 

Haddrick  v.  Heslop,  128,  622,  783,  810. 

Hadley  v.  Green,  335. 

Hagedorn  v.  Reid,  493,  548,  551. 

Haigh  V.  Belcher,  201,  618. 

V.  Brooks,  709. 
Haire  v.  Wilson,  763. 
Halhead  v.  Abraham,  807. 
Halifax's  (Lord)  case,  594,  756. 
Hall  V.  Bainbridge,  510. 

V.  Ball,  542,  544. 

V.  Cazenove,  720. 

V.  Cecil  and  Rex,  120. 

V.  Chandless,  502. 

V.  Hoddesdon,  420,  431. 

V.  Stone,  335. 

V.  Wiggett,  678. 
Hallett  V.  Cousens,  169,  171,  243. 

V.  ilears,  103-. 
Halliley  ;;.  Nicholson,  650,  604. 
namV)er  r.  Roberts,  521. 
Hammond  v.  Howell,  369. 
Hampshire  v.  Pierce,  668,  680. 
Hanbury  v.  Ella,  637. 
Hancock  v.  Podmore,  807. 

V.  Welsli,  329,  334,  360. 
Ilanley  v.  Ward,  197. 
Hftiuiaford  r.  Hunn,  343. 
Hanson  v.  Shackleton,  738. 
JIanwell  v.  Lyon,  266. 
Ilarcourt's  case,  190. 
Hardcastle  v.  Sclater,  403. 
Hardwood  v.  Wallace,  077. 
Hardy's  case,  184,  192,  197,  204,  213. 
Hare  v.  Cater,  028. 

V.  Mnnn,  596. 

V.  Slicarwood,  658. 
Hargcst  v.  Fotliergill,  550. 
ilarrap  v.  Bradsiiaw,  390. 


Harratt  v.  Wise,  280,  785. 
Harrington  v.  Macmorris,  450,  641. 
Harris  v.  Goodwyn,  747. 

V.  Lincoln  (Bishop  of),  055. 
V.  Lloyd,  087. 

V.  Tippett,  200,  201,  210,  213. 
Harris's  case,  230,  863. 
Harrison  v.  Barnaby,  628. 

V.  Blades,  410,  518. 
V.  Borwell,  271. 
V.  Gordon,  201. 
V.  Gould,  599. 
V.  Harrison,  508. 
V.  Turner,  582. 
Harrison's  case,  253. 
Harscot's  case,  756. 
Hart  V.  Harrison,  581. 
V.  Hart,  542. 
V.  Macnamara,  378. 
V.  Stephens,  135,  137. 
Hartley  v.  Cooke,  304,  309. 

V.  Wharton,  591,  721. 
Hartshorne  v.  Watson,  120,  143,  144. 
Harvey  v.  Harvey,  312,  658. 
V.  Hewitt,  805. 
V.  Mitchell,  541,  614,  615. 
V.  Morgan,  559. 
Harvy  v.  Broad,  738. 
Harwood  v.  Goodright,  760,  818,  847. 

V.  Sims,  50. 
Hastings's  case,  244,  282. 
Hatch  V.  Blisset,  113. 
Hatfield  v.  Hatfield,  375. 
Hathaway  v.  Barrow,  332,  364,  365. 
Hattam  v.  Withers,  562. 
Havelock  v.  Rockwood,  380,  382. 
Hawkesworth  t).  S^iowler,  139. 
Hawkins  v.  Kemp,  509. 
Haworth  v.  Whalley,  806. 
Haws  V.  Hand,  411. 
Hayne  v.  Maltby,  100. 
Haynes  v.  Hare,  652,  658. 

V.  Holliday,  706. 
Hayslip  v.  Gymer,  468. 
Hazy's  case,  643. 
Healey  v.  Story,  000. 

V.  Thatcher,  582. 
Hearne  v.  Turner,  137. 
Hedges'  case,  185,  862. 
Hemming  v.  Parry,  636. 

V.  Trenery  and  another,  501. 
Henderson  v.  Henderson,  335,  342,  353, 

354,  357,  402. 
llenklc    V.    Royal    Exchange    Assurance 

Company,  076,  703. 
Henley  v.  Soper,  341,  358. 
llcnman  v.  Dickenson,  500. 
llenncll  v.  Lyon,  432,  447,  448, 
Henry  v.  Adey,  259,  399,  400,  737,  740. 
V.  Lee,  180. 
V.  Leigh,  309,  552. 
Ilenshaw  v.  Pleasance,  348,  379. 
Herbert  v.  Cooke,  358,  400. 
V.  Reid,  091. 


TABLE     OF    CASES. 


XXXI 


Herbert  v.  Walters,  T98. 
Hervey's  case,  375,  403. 
Hetherington  v.  Kemp,  551. 
Heudebourck  v.  Langley,  121. 
Hewitt  V.  Macquire,  540. 

V.  Pigott,  447. 
Hewlett  V.  Crutchley,  804. 
Hewsou  V.  Brown,  257. 
Heyshaiu  v.  Forster,  312. 
Hibbert  V.  Knight,  112,  113,  540. 
llibblewhite  v.  M'Morine,  503. 
Higgins  V.  iSenior,  665,  721. 
Higginson  v.  Clowes,  664. 
lliggs  V.  Dixon,  507. 

V.  Mortimer,  435. 
V.  Taylor,  540. 
Higham  v.  Ridgway,  64,  65,  465,  474,  475. 
Highfield  v.  Peake,    227,   261,   423,   432, 

447.  . 
Hilliard  v.  Phaley,  376. 
Hill  V.  Bateman,  369,  370. 
V.  Coombe,  197. 
V.  Kitching,  135. 

V.  Manchester  and  Stafford  Water- 
work  Company,  309,  659. 
V.  Unett,  519,  520. 
Hillard  v.  Phaley,  339. 
Hillyard  v.  Grantham,  363,  364. 
Hilton  V.  Shepherd,  775. 
Hinchclifte  v.  Hinchclitie,  714. 
Hinton  v.  Heather,  783. 

V.  Campbell,  329,  333,  334. 
V.  Groom,  675,  787. 
Hoare  v.  Graham,  660,  666. 
Hobart  v.  Hammond,  770,  773. 
Hobhouse  v.  Hamilton,  573. 
Hobman  v.  Burrow,  739. 
Hockiu  V.  Cooke,  700,  702,  741. 
Hodges  V.  Draketord,  655. 

V.  Holder,  597. 
Hodgkinson  v.  Willis,  447. 
Hodgson  V.  Ambrose,  687. 

V.  Glover,  790. 
Hodnett  v.  Forman,  513,  514. 
Hodson  V.  Marshall,  121. 

V.  Merest,  442. 
Hoe  V.  Nathorp,  268,  269. 

V.  Nelthrope,  395. 
Hogarth  v.  Perring,  603. 
Hogg  V.  Suaith,  666. 
Hoggett  V.  Exley,  599. 
V.  Uxley,  600. 
Holcombe  v.  Hewson,  619. 
Holcroft  V.  Smith,  411,  575. 
Holding  V.  Pigott,  711,  712. 
Holdsworth   v.    Dartmouth    (Mayor   of), 

250. 
Holland  v.  Reeves,  228,  563,  581. 
Holland's  case,  735. 
Holliday  v.  Pitt,  113. 
Hollis  V.  Goldfinch,  470. 
Holloway  v.  Rakes,  489. 
Holmes  v.  Pontin,  513. 
Holmes  v.  Walsh,  403. 


Holsten  v.  Jumpson,  677,  720. 
Holt  V.  Miers,  340,  555,  557. 
Home  V.  Bentnick,  42,  192,  256. 
Honey  wood  v.  Peacock,  505,  513. 
Hood  V.  Reeve,  702,  706. 
llooley  V.  Hatton,  714. 
Hooper  v.  Hooper,  326. 

V.  Lane,  799,  785. 
Hope  V.  Atkins,  661,  662. 
Hopkins  v.  Jones,  389,  390. 
Horford  v.  Wilson,  145,  800. 
Horn  V.  Baker,  786. 

V.  Swinford,  114. 
Home  V.  Mackenzie,  178,  182. 

V.  Smith,  104. 
Horneyer  v.  Lushington,  382. 
Houlditch    V.    Donegal    (Marquis),    351, 

353. 
Houlisten  v.  Smyth,  393. 
Househill  Coal  Company  o.  Neilson,  797. 
Houseman  v.  Roberts,  555. 
Hovill  V.  Stephenson,  513. 
How  V.  Hall,  561,  562. 
V.  Pickard,  809. 
V.  Strode,  799. 
Howard  v.  Burtonwood,  299. 
V.  Canfield,  180,  184. 
V.  Gossett,  105. 
V.  Smith,  506. 
V.  Tremaine,  409,  420. 
V.  Williams,  556. 
Howell  V.  Locke,  115,  144. 

V.  Wilkins,  740. 
Hoyle  V.  Cornwallis,  738. 
V.  Coupe,  124. 
V.  Hamilton,  687. 
Hubbard  v.  Johnstone,  766. 
Hubbart  i).  Phillips,  324. 
Iluckman  v.  Fernie,  596. 
Hudson  V.  Brown,  586,  603. 
V.  Revett,  502. 
V.  Robinson,  361,  365. 
Hudson's  case,  511. 
Huet  V   Le  Mesurier,  300. 
Hughes  V.  Cornelius,  380. 

V.  Gordon,  701,  712. 
V.  Hughes,  799,  801. 
V.  Rogers,  201,  202. 
V.  Turner,  688. 
V.  Wilson,  307. 
Hughes'  case,  643. 
Hull  (Mayor  of)  v.  Horner,  387. 
Humble  v.  Hunt,  270,  283,  309. 

V.  Hunter,  665. 
Humphreys  v.  Budd,  738. 
V.  Knight,  285. 
V.  Miller,  118. 
V.  Pensam,  415. 
Hunt  V.  Alewyn,  530. 
V.  Andrews,  310. 
V.  Hort,  650. 
Hunter  v.  Caldwell,  780,  785. 

V.  Potts,  737. 
Huntingtower  (Lord)  v.  Gardiner,  809. 


xxxu 


TABLE    OF    CASES. 


Huntley  v.  Donovan,  306, 
Huntley  Peerage,  284,  526. 
Hurst  V.  Beach,  715. 

V.    Royal     Exchange     Assurance 
Company,  772. 
Hussey  v.  Field,  757. 
Hutchins  v.  Scott,  501. 
Hutchinson  v.  Bernard,  434. 
V.  Bowker,  705. 
Hutchinson's  case,  366,  383. 
Huthwaite  v.  Phaire,  400. 
Hutt  V.  Morell,  334. 
Hutton  V.  Warren,  712,  761. 
Huxhain  v.  Smith,  3  50,  359. 

Iggulden  V.  May,  700,  701. 

Ilderton  v.  Atkinson,  122. 

niingworth  v.  Leigh,  291,  430,  431,   477. 

Icledon  v.  Burgess,  326. 

Ingram  v.  Lawson,  452,  613. 

V.  Lea,  729. 
Ireland  v.  Powell,  49. 
Irish  Society  v.  Derry   (Bishop   of),  260, 

287,  309,  406,  492,  579. 
Irnham  (Lord)  v.  Child,  658,  672. 
Isaacs  V.  Brand,  781. 
Isham  !'.  Wallace,  309. 
Islington  Market  Bill,  In  re,  757. 
Ivatt  V.  Finch,  486. 

Jack  V.  M'Intyre,  692. 
Jackson  v.  Allen,  571. 

V.  Bull,  27. 

V.  Duchaire,  803. 

V.  Hesketh,  597,  605. 
Jacob  V.  Lee,  560. 
Jacobs  V.  Layborne,  144,   145. 
V.  Laybourn,  115,  615. 
V.  Lindsay,  180, 181,  729. 
V.  Tarleton,  608. 
James  v.  Phelps,  783. 
V.  Salter,  605. 
James's  case,  266,  447. 
Jameson  ('.  Drinkald,  175. 
Janson  v.  Wilson,  419. 
Jarrett  v.  Leonard,  799. 
Jeacock  v.  Falkener,  666,  670,  689. 
Jeans  r.  Wheadon,  544,  718. 
Jefferey  v.  McTaggart,  346. 
V.  Walton,  656,  724. 
Jenkins  v.  Blizard,  280. 
Jenkinson  v.  Pepys,  664. 
Jennings  v.  Griffiths,  311. 
Jewison  v.  Dyson,  312,  524,  620. 
Johnson  v.  (JoUings,  657. 

V.  Durant,  349. 

V.  Gilson,  560,  580. 

V.  Graham,  135,  136. 

V.  Levvellin,  505. 

V.  Mason,  505. 

V.  St.  Peter,  Hereford,  761. 

V.  Ward,  300. 
Johnstone  v.  Sutton,  781. 
Johnstone's  case,  626. 


Jolley  V.  Taylor,  561. 
Jones  V.  Bow,  375,  376. 

V.  Brewer,  423,  505,  510,   518. 

V.  Edwards,  559. 

V.  Fort,  614. 

V.  Gibson,  810. 

V.  Hilton,  559. 

V.  Howell,  056. 

V.  Jones,  410,  521. 

V.  Kenrick,  595. 

V.  Littledale,  665,  707. 

V.  Mason,  521. 

V.  Morgan,  670. 

V.  Newsam,  679. 

V.  Randall,  281,  389,  393. 

V.  Sparrow,  804. 

V.  Stevens,  309. 

V.  Stroud,  180,  183. 

V.  Tarleton,  555.  . 

V.  Tucker,  688. 

V.  Waller,  527. 

V.  White,  361,  364,  406. 

V.  Williams,  620. 
Jory  V.  Orchard,  500,  558. 
Joynes  v.  Statham,  672. 
Joy's  (Lady)  case,  803. 
Jupp  V.  Grayson,  349. 

Kain  v.  Old,  661,  678. 

Kaines  v.  Knightl}',  661. 

Kay  V.  Brookman,  517,  519,  520. 

V.  Clarke,  394. 
Keable  i'.  Hayne,  367. 
Kearle  v.  Boulter,  771. 
Kearney  v.  King,  738,  741. 
Keelin  v.  Ball,  571. 
Kellington  v.  Trinity  College,  Cambridge 

(Master,  &c.,  of),  286,  407. 
Kemp  V.  Mackerill,  616. 
Kempson  v.  Yorke,  583. 
Kempton  v.  Cross,  259. 
Kenn's  case,  375. 

Kensington  v.  Inglis,  184,  185,  537,  548. 
Kent  V.  Lowen,  89,  174,  467. 
Kerslake  v.  White,  691. 
Keys  V.  Harwood,  729,  731. 
Kieran  v.  Johnson,  552. 
Killington(  Vicar  of)  I'.Trinity  College, 289 
Kinder  i>.  Williams,  113,  114. 
Kindersley  v.  Chace,  380,  381,  382. 
Kine  v.  Beaumont,  558. 
King  V.  Baker,  133. 

V.  Cole,  506. 

V.  Dixon,  111. 

V.  Foster,  312. 

V.  Norman,  321,  322,  639. 

V.  Simmonds,  792. 

V.  Williamson,  615, 
Kinsman  v.  Cooke,  410. 
Kingston-upon-lIuU  (Mayor  of)  v.  Hor- 
ner, 455. 
Kingston's  (Duchess  of)  case,  180,  319, 
323,  322,  337,  341,  354,   374,   377,   385, 
402. 


TABLE    OF    CASES. 


XXXlll 


Kinnersley  v.  Orpe,  2G1,  283,  294,  324, 

329. 
Kirbj  V.  Hickson,  738. 
Kirk  V.  Nowill,  735. 
Kirwan  v.  Cockburn,  280. 

V.  Kirwan,  280. 
Kitchen  v.  Campbell,  318. 

V.  Mainwaring,  7G4. 
Kite  V.  Queinton,  678. 
Knai)p  V.  Haskall,  609. 
Knapton  v.  Cross,  394. 
Knight  V.  Clements,  500. 

V.  Dauler,  2  72. 

V.  M'Donall  and  others,  641. 

V.  Martin,  553,  567. 

V.  Waterford  (Marquis   of),  480, 
551. 

V.  Woore,  124. 
Knolly's  case,  282. 
Koster  v.  Reed,  132. 


Lacy  V.  Forrester,  592. 
Lacon  v.  Hooper,  306. 
Lagbourn  v.  Crisp,  189. 
Laing  v.  Kaine,  505,  572. 
Lainson  v.  Tremere,  657,  659,  666. 
Lake  v.  Billers,  436. 

V.  Kink,  736. 

V.  Lake,  713. 

V.  Skinner,  291. 
Lambert  v.  Hale,  603. 
Lanauze  v.  Palmer,  559. 
Lancum  v.  Lovell,  386,  472. 
Lane  v.  Hegberg,  379. 

V.  Stanhope  (Lord),  689. 
Lane's  case,  737. 

Lanesborough's  (Lord)  case,  266,  545. 
Langfield  d.  Banton  v.  Hodges,  713. 
Langley  v.  Oxford,  505,  573. 
Lano  V.  Neale,  661. 
Latkow  V.  Earner,  289,  407. 
Latour  v.  Bland,  719. 
Launder  v.  Brooks,  736. 
Lavie  v.  Phillips,  736. 
Lawes  v.  Reed,  180. 
Lawler  v.  Murray,  796. 
Lawrence  v.  Clarke,  551,  555,  557,  559, 
562. 
V.  Dixon,  299. 
V.  Hooker,  503. 
Lawson  v.  Sherwood,  569. 
Layburn  v.  Crisp,  392. 
Layer's  case,  42,  209,  238. 
Leader  v.  Barry,  300. 
Leafy.  Butt,  557. 
Leake  v.  Westmeath   (Marquis  of),   268, 

393. 
Leary  v.  Patrick,  370. 
Le  Caux  v.  Eden,  380. 
Lechmere  v.  Fletcher,  342. 
V.  Toplady,  333. 
Lee  q.  t.  v.  Birrell,  193. 
V.  Lee,  30. 


Lee  V.  Meecock,  267,  298,  389. 
Lee's  case,  201. 
Leeds  v.  Cook,  113,  553,  562. 
Leeson  v.  Holt,  280. 
Legatt  V.  Reed,  785. 

V.  Tollervey,  322. 
Le  Gross  v.  Lovemore,  477. 
Leighton  v.  Leighton,  406,  408,  416. 
Lemon  v.  Dean,  511,  518,  530. 
London  v.  Sharp,  784. 
Lepping  v.  Kedgewin,  334. 
Leslie  v.  De  la  Torre,  657,  661. 
LethuUier's  case,  703,  704. 
Levy  V.  Baillie,  803. 
Lewick  v.  Lucas,  338. 
Lewis  V.  Clarges,  360. 

V.  Hartley,  571. 

V.  Marshall,    618,    653,    702,    707, 
788, 789. 

V.  Rogers,  467. 

V.  Simpson,  467. 

V.  Wells,  598. 
Ley  V.  Ballard,  511,  518. 
Leibman  v.  Pooley,  543,  548,  643,  644. 
Lightfoot  w.  Cameron,  113. 
Lilly  V.  Ewer,  703,  705. 
Lincoln  (Bishop  of)  v.  Ellis,  327. 
Lingham  v.  Briggs,  786. 
Linton  v.  Bartlett,  784. 

School  V.  Scarlett,  696. 
Littler  v.  Holland,  663,  725. 
Lloyd  V.  Freshfield,  184. 

V.  Maddox,  402. 

V.  Mostyn,  540,  543,  556. 

V.  Wait,  497. 

V.  Wynne,  658. 
Lobb  V.  Stanley,  721. 
Lock  V.  Hayton,  27. 
Locke  V.  Norborne,  326. 
Lockett  V.  Nicklin,  656,  664. 
London  and  Birmingham  Railway  Com- 
pany V.  Winter,  675. 

(City  of)  V.  Clarke,  386. 

(Mayor,  &c.  of)  v.  Long,  697. 

(Mayor  of)  a^.  Lynn   (Mayor  of), 
455. 
Long  V.  Champion,  447. 

V.  Hitchcock,  203,  240,  241. 
Longcamp  v.  Fish,  784. 
Lorton  (Lord)  v.  Gore,  550. 
Lothian  v.  Henderson,  380. 
Lovat's  (Lord)  case,  115,  143,  144. 
Lovelace's  case,  508. 
Lowe  V.  JoUifFe,  511. 

V.  Peers,  747. 
Lowfield  V.  Stoneham,  668. 
Lucas  V.  De  la  Cour,  443. 

V.  Groning,  701. 
Lugg  V.  Lugg,  715. 
Lunniss  v.  Row,  143,  144. 
Lutterell  v.  Raynell,  253. 
Luttrell  V.  Lea,  257. 
Lygon  V.  Strutt,  290,  312,  526. 
Lynch  v.  Gierke,  268,  315,  444. 


XXXIV 


TABLE     OF    CASES. 


Lynn  v.  Beaver,  715. 

V.  (Mayor  of)  v.  Denton,  456. 
Lynn's  (Mayor  and  Burgesses  of)    case, 

510. 
Lysons  v.  Barrow,  400. 
Lytton  V.  Lytton,  670. 

Macullam  v.  Thurton,  204. 
M'Alpine  v.  Mangnall,  795. 
Macbeth   v.   Haldimand,    677,    720,    730, 

787. 
M'Brain  v.  Fortune,  121. 
Macbride  v.  Macbride,  207,  210. 
M'Carthy's  case,  718. 
Macclesfield's  (Lord)  case,  204. 
M'Combie  v.  Anton,  420,  426. 
Macdonnell  v.  Evans,  227. 
Macdougal  v.  Young,  272. 
M'Graw  v.  Gentry,  518,  529. 
M'Gahey  v.    Alston,   131,  481,  534,  538, 

64G,  647. 
M'Guire's  case,  643. 
M'Intyre  v.  Layard,  432. 
M'lver  V.  Humble,  311. 
Mackalley's  case,  397. 
Mackally's  case,  626. 
Mackell  v.  Winter,  689. 
M'Naghten's  case,  174,  175, 
M'Neil  V.  Perchard,  271. 
Maddison  v.  Nuttall,  476. 
Magee  v.  Atkinson,  665,  707. 
Magrath  v.  Hardy,  343. 
Makarell  v.  Bachelor,  773. 
Malkin  v.  VickerstafF,  802. 
Mallabar  v.  Mallabar,  713. 
Mallan  v.  May,  701,  705. 
Maloney  v.  Bartley,  204,  205. 
Malony  v.  Gibbons,  351. 
Malpas  V.  Clements,  759. 
Maltoir  v.  Nesbitt,  175. 
Man  V.  Gary,  269. 
Manby  v.  Curtis,  522,  523,  528. 
Manley  v.  Shaw,  816. 
Mann  v.  Davers,  370. 

V.  Lovejoy,  807. 

V.  Musgrave,  566. 

V.  Owen,  3G0. 
Manners  v.  Postan,  507. 
Manning   v.    Eastern    Counties    Railway 
Company,  757. 
V.  Lechmere,  481. 
Mant  V.  Mainwaring,  120,  128. 
Manton  v.  Bales,  804. 
Markhani  v.  Middleton,  335. 
Marks  v.  Lahec,  485,  496. 
Marleys    v.    Drayton.        See    Masters    v. 

Drayton. 
.Marriage  v.  Lawrence,  309,  455. 
Marriot  v.  .Marriot,  400. 
.Marriott  v.  Hampton,  348. 
Marsh  v.  (JoUiiett,  269. 

V.  Colnett,  300,  522,  523. 

V.  Robinson,  310. 
Marshall  v.  Glill",  572. 


Marshall  v.  Lamb,  646,  758. 

V.  Lynn,  655,  663,  725. 
V.  Parker,  381. 
Marston  v.  Downes,  214,  540. 

V.  Roe  d.  Fox,  715,  716. 
Marten  v.  Thornton,  336. 
Martin  v.  Bell,  437. 

V.  Nicolls,  346,  352,  353. 
Martin  Lolly's  case,  402. 
Martyn  v.  Podger,  436. 
Mascal  v.  Mascal,  658,  667. 
Mash  V.  Smith,  130. 
Mason  v.  Ditchbourne,  615. 
Massey  v.  Goyder,  615. 

V.  Johnson,  398. 
Masters  v.  Barnwell,  804. 

V.  Drayton,  118,  120. 

V.  Masters,  654,  670,  690. 
Mathews  v.  Smith,  809. 
Matthews  v.  Haydon,  122. 
Maugham  v.  Hubbard,  178,  179,  181,  511 

729. 
Mawson  v.  Hartsink,  238. 
Maxwell  v.  Sharp,  722. 
May  V.  Chapman,  593. 
V.  May,  298,  414. 
Maybank  v.  Brooks,  689. 
Mayer  (Assignees  of)  v.  Sefton,  645. 
Mayfield  v.  Wadsly,  804. 
Mayo  V.  Browne,  403. 
Mead  v.  Robinson,  269,  308. 
Meagoe  v.  Simmons,  180,  202,  605. 
Mease  v.  Mease,  652,  659,  666. 
Meath  (Bishop  of)  v.  Belfield  (Lord),  49, 
190,  309,  730. 
V.Winchester  (Marquis  of),  292, 
444,  459,  524,  527,  767,  789,  791. 
Meddowcroft  v.  Huguenin,  402. 
Medlicot  v.  Joyner,  543. 
Mee  V.  Reed,  31. 
Meekinsw.  Smith,  113. 
Melhuish  v.  Collier,  132,  168. 
Mellish  V.  Rawdon,  770. 
Melville's  (Lord)  case,  282,  548,  756. 
Mendham  v.  Thompson,  464. 
Mercer  v.  Whall,  597,  599,  600,  605. 
Meres  v.  Ansell,  662,  684,  725. 
Merrick  v.  Wakely,  309. 
Mayer  v.  Everth,  661. 
Meyer's  Assignees  v.  Sefton,  177. 
Meyrick  v.  Woods,  557. 
Michell  V.  Rabbetts,  292,  526. 

V.  Williams,  782. 
Middleton  v.  Barned,  755,  760. 
Milbanke  v.  Grant,  647. 
V.  Melton,  481. 
V.  Sandford,  520. 
Milbourn  v.  Ewart,  722. 
Mildniay's  case,  659. 
Mildrone's  case,  31. 
Miles  V.  Bough,  313. 
Millar  v.  Heiurick,  175. 
Millar's  case,  173. 
Millard's  case,  622. 


TABLE    OF    CASES. 


XXXV 


Miller  v.  Falconer,  122. 

V.  Foster,  293. 

V.  Miller,  515,  522. 

V.  Travers,  686,  687,  690,  694. 

V.  Warre,  791,  798. 
Jliller's  case,  293. 
Millman  v.  Tucker,  213. 
Mills  V.  Barber,  592. 

V.  Oddy,  540,  592. 
Milton  (Lord)  v.  Edgworth,  655,  663. 
Milward  v.  Forbes,  581. 
V.  Hibbert,  621. 
V.  Temple,  520,  572,  753. 
Minchin  v.  Clement,  809. 
Minshull  v.  Lloyd,  538. 
Minton's  case,  626. 
Mires  v.  Solebay,  766. 
Mitchell  V.  Johnston,  519,  520. 
Moises  V.  Thornton,  259,  457,  647,  740. 
Molier  v.  Living,  702. 
Molony  v.  Gibbons,  358. 
Molton  V.  Harris,  545,  575. 
Monday  v.  Guyer,  127. 
Mondell  v.  Steel,  337,  338,  426. 
Money  v.  Leach,  795. 
Monke  v.  Butler,  594,  756. 
Monkton  v.  Attorney-General,   63,   190, 

422. 
Montague  (Earl  of)  v.  Preston,  (Lord), 

444. 
Montgomery  v.  Clarke,  389,  390. 
Moodaylay  v.  Morton,  428. 
Moody  V.  King,  120,  129. 

V.  Thurston,  348,  401. 
Moon  V.  Raphael,  544. 

V.  Whitney  Guardians,  710. 
Moore  v.  Booth,  114. 

V.  Garwood,  786. 

V.  Hastings,  (Mayor  of),  578,  579. 

V.  Taylor,  803. 

V.  Tuckwell,  801. 
Moravia  v.  Sloper,  737. 
Morland  v.  Bennett,  750. 
Morewood  v.  Wood,  48,  49,  62,  187,  620. 
Morgan  v.  Brydges,  196. 
V.  Hughes,  369. 
V.  Moore,  345. 
V.  Morgan,  517. 
V.  W^hitmore,  759. 
Morgan's  case,  29,  31. 
Morish  v.  Foote,  115,  122. 
Morrell  v.  Fisher,  688,  692. 

V.  Frith,  787. 
Morris  v.  Davies,  814. 

V.  Davis,  299. 

V.  Hannen,  560. 

V.  Hauser,  560. 

V.  Lotan,  599. 

V.  Pugh,  435. 

V.  Vivian,  806. 
Morrish  v.  Murrey,  801. 
Morrison  v.  Lennard,  114. 
Mortimer  v.  M'Callan,  266,  269,  456,  801. 
Morton  v.  Burn,  657. 


Moscati  V.  Lawson,  611. 
Moseley  v.  Davies,  189. 

V.  Hanford,  660. 
Moses  V.  Macfarlane,  347. 
Mostyn  v.  Fabrigas,  423,  737. 
Motteux  V.  London  Assurance  Company, 

676. 
Mould  V.  Williams,  270. 
Mounsey  v.  Blamire,  692. 

V.  Burnham,  505. 
Mounson  v.  Bourn,  737. 
Mulvany  v.  Dillon,  419. 
Munn  V.  Baker,  280. 

V.  Godbold,  541,  543,  544. 
Murley  v.  M'Dermott,  723. 
Murphy  v.  Donlan,  810. 
Murray  v.  Gregory,  506. 

V.  Stair  (Earl  of),  510, 

V.  Wise,  416. 
Musgrave  v.  Emmerson,  481,  484. 
Mytton  V.  Harris,  291. 

Naish  V.  Brown,  613. 
Nannock  v.  Horton,  688. 
Napier  v.  Napier,  688. 
Nathan  v.  Buckland,  800. 
Naylor  v.  Taylor,  382. 
Neale  v.  Fry,  314. 

V.  Wilding,  387. 
Needham  v.  Eraser,  104,  640. 

V.  Law,  119. 
Neilson  v.  Harfod,  787. 
Nelson  v.  Whittall,  519,  520. 
Newcastle  (Duke  of),  v.  Broxtowe  Hun- 
dred, 187. 
New  College  (case  of),  371,  401. 
Newhall  v.  Holt,  807. 
Newham  v.  Raithby,  300. 
Newton  v.  Boodle,  793. 
V.  Chantler,  784. 
V.  Chaplin,  112,  540. 
Newys  v.  Larke,  798. 
Nicholls  V.  Dowding,  146. 

V.  Parker,  49,  63,  186. 
Nicholson  v.  Brook,  615. 
Nichols  V.  Ross,  755. 
Nicol  V.  Alison,  427. 
Nind  V.  Arthur,  793. 
Noble  V.  Kennaway,  780. 
V.  Kinnoway,  621. 
Noden  i\  Johnson,  629. 
Noel  V.  Wells,  374,  400. 
Norman  v.  Morrell,  654. 
Northam  v.  Latouche,  398. 
Norton  v.  Melbourne  (Lord),  425. 
Novelli  V.  Rossi,  354. 
Noyder  v.  Peacock,  416. 

Oakden  v.  Clifden,  689. 
Gates  d.  Wigfall  v.  Brydon,  671. 
Obicini  v.  Bligh,  341,  355,  356. 
O'Coigly's  case,  210. 
O'Connor  v.  Malone,  390. 
O'Connor's  case,  210. 


XXXVl 


TABLE     OF    CASES. 


Oddy  V.  Bovill,  381,  382. 
Ofley  V.  Hicks,  (3G6. 
Ogle  V.  Norcliffe,  131. 

V.  Paleski,  115,  145. 
Okill  V.  Whittaker,  675. 
Oldman  v.  Slater,  113. 
Oldroyd's  case,  231,  239. 
Olive  V.  Guin,  739. 

V.  Gwyn,  259,  576. 
Oliver  v.  Bartlett,  43. 
V.  Latham,  125. 
Omichund  v.  Barker,  29,  116,  294. 
Orr  V.  Morrice,  566. 
Osborn  v.  Thompson,  601. 
Osgathorpe  v.  Diseworth,  383. 
Osterman  v.  Bateman,  622. 
Outhwaite  v.  Hudson,  807. 
Outram  v.  Morewood,  48,  49,  323,   326, 

329,  334,  343,  473,  476,  477,  480. 
Overton  v.  Harvey,  334. 

Paddock  v.  Fradley,  691. 
Page  V.  Faucet,  738. 

V.  Mann,  519,  520. 
Pain  V.  Beeston,  241. 
Pallant  v.  Roll,  626. 
Palmer  v.  Aylesbury  (Lord),   411,   431, 

432. 
Palmerston's  (Lord)  case,  191,  414,  433. 
Panton  v.  Williams,  770,  782. 
Pardoe  v.  Price,  500,  535,  657. 
Pargeter  v.  Harris,  460. 
Parker  v.  Hoskins,  514,  516, 

V.  M'Williams,  200. 

V.  Palmer,  780. 

V.  Whitby,  118. 
Parkhurst  v.  Lowten,  204. 
Parkin  v.  Moon,  168,  197. 
Parkins  v.  Hawkshaw,  520,  572. 
Parkinson  v.  Collier,  707. 
Parry  v.  May,  554. 
Parsons  v.  Parsons,  686. 
Parteriche  v.  Powlet,  725. 
Partington  v.  Butcher,  444,  583. 
Partridge  v.  Coates,  553. 

V.  Strange,  684,  735. 
Pasmore  v.  Bousfield,  647. 
Patch ett  V.  Bancroft,  379. 
Patrick's  (Dr.)  case,  371,  401. 
Paxton  V.  Douglas,  204. 

V.  Popham,  072,  675,  807. 
Peaceable  v.  Watson,  490. 
Peacock  v.  Bell,  737. 

V.  .Monk,  659,  660. 
Pearce  v.  Gray,  337,  361. 

V.  Hooper,  5G5. 

V.  Whale,  758. 
Pearcy  v.  Fleming,  120. 
Peardon  v.  Undcrhill,  620. 
Pearse  v.  Morris,  500,  564,  578. 
Pearson  v.  Cole,  002. 

V.  Henry,  658. 
Pease  v.  Naylor,  774. 
Peddcr  v.  M'Master,  346. 


Pedler  v.  Paige,  512. 

Pedley's  case,  173. 

Pegg  V.  Stead,  640. 

Pember  v.  Mathers,  664. 

Penn  v.  Ward,  618. 

Pennell  v.  Meyer,  439,  444. 

Penny  v.  Foy,  589. 

Penson  v.  Lee,  616. 

Pepper  v   Winyeve,  670. 

Percival  v.  Frampton,  592. 

Perigal  v.  Nicholson,  65,  115,  144,  477. 

Perring  v.  Tucker,  615. 

Perrott  v.  Perrott,  502. 

Perry  v.  Gibson,  196. 

Fetch  V.  Lyon,  572. 

Petersborough  (Lord)  v.  Mordaunt,  531. 

Peters  v.  Fleming,  773. 

Petit  V.  Smith,  670. 

Petre  (Lord)  v.  Blencoe,  699. 

Philipson  v.  Chase,  563. 

Phillipson  v.  Egremont  (Lord),  324,  385, 

402,  403. 
Phillips  V.  Allen,  342. 

V.  Bury,  371,  401. 

V.  Carew,  428. 

V.  Cole,  491,  492,  788. 

V.  Crawley,  375. 

V.  Earner,  196. 

V.  Hunter,  346,  347,  348. 

V.  Irving,  780. 

V.  Willetts,  616. 
Phipps  V.  Parker,  511,  518,  530. 
Physicians  (College  of)  v.  West,  276. 
Pickard  v.  Sears,  100,  762. 
Pickering  v.  Dowson,  661,  678. 
Pickton's  case,  175,  279. 
Piercy's  case,  314. 
Piers  V.  Piers,  754. 
Piesley  v.  Yon  Esch,  120. 
Pilce  V.  Badmering,  511. 
Pike's  case,  33. 

Pilgrim  v.  Southampton  Railway  Com- 
pany, 572. 
Pirn  d.  Curell,  189,  340,  386,  422. 
Pinkney  v.  Hall,  236. 

V.  De  Rosel,  Inhab.,  27. 
V.  Steel  and  another,  128. 
Piper  V.  Chappell,  756. 
Pirie  v.  Anderson,  310,  311. 
Pitcairn  v.  Ogbourne,  676. 
Pitcher  v.  King,  261,  438. 

V.  Rinter,  396. 
Pitman  v.  Maddo.x,  493. 

V.  Woodbury,  500,  508. 
Pitt  V.  Knight,  257. 

V.  Shew,  774,  779. 
Pitton  r.  Walter,  267,  312,  389,  390,  414. 
Plaxton  V.  Dare,  286,  481. 
Playdell  v.  Dorchester  (Lord),  804. 
Plumer  v.  Brisco,  507,  568,  577,  646. 
Plumer's  case,  174. 
Phuiinicr  v.  Woodburne,  341,  352. 
Plunkett  V.  Cobbett,  193. 
Pocock  V.  Lincoln  (Bishop  of),  689. 


TABLE     OF    CASES. 


XXXVU 


Pole  V.  Rogers,  426,  601. 

r.  Somers  (Lord)  714. 
Polhill  V.  Polhill,  394. 
Pollard  V.  Bell,  355,  381,  382. 

V.  Scott,  290. 
Pomeroy  v.  Baddeley,  199. 
Pontifex  v.  Bignold,  763. 
Poole  V.  Dicas,  496,  497. 

V.  Warren,  542,  570. 
Pooley  V.  Goodwin,  541,  542,  569. 
Poter  V.  Cooper,  2G7,  391. 
Portmore  (Lord)  v.  Morris,  658,  659. 
Portez  V.  Glossop,  4G7,  502,  521,  758. 
Pott  V.  Todhunter,  674. 
Potter  V.  Brown,  346. 
Potts  V.  Durant,  290,  291,  292,   293,  294, 

527. 
Powel  V.  Gordon.    See  Powell  v.  Gordon. 

V.  Milbank,  594. 
Powell  V.  Edmonds,  656,  661,  664. 
V.  Farmer,  628. 
V.  Gordon,  118. 
V.  Horton,  705. 
V.  Layton,  322. 
V.  Milburn,  756. 
Powis  V.  Smith,  785. 
Poynton  v.  Forster,  389. 
Pratt  I'.  Parkinson,  370. 
Preston  v.  Merceau,  655,  658,  662. 
Preston's  (Lord)  case,  113. 
Price  V.  Dewhurst,  355. 
V.  Edmunds,  660. 
V.  Green,  792. 
V.  Hollis,  277. 
V.  Littlewood,  303. 
V.  Moulton,  657. 
V.  Oldfield,  403. 
V.  Page,  650. 
V.  Seaward,  600. 

V.  Torrington  (Lord),  64,  465,  494. 
V.  Woodhouse,  454,  529,  547. 
Price's  case,  448. 
Prichard  v.  Powell,  187. 
Prince  v.  Blackburn,  513,  519,  520. 

V.  Samo,  171,  234,  235,  252,  582. 
Pritchard  v.  Bagshawe,  435,  506. 
V.  Draper,  443. 
V.  Hitchcock,  321. 
V.  Symonds,  543,  551,  554. 
V.  Powell,  48. 
V.  Walker,  646. 
Pritt  V.  Fairclough,  494,  547,  569. 
Proctor  V.  Lainson,  411,  412. 
Prosser  v.  Gwillim,  486. 
Provis  V.  Reed,  253,  512. 
Prudham  v.  Phillips,  385,  403. 
Pullen  V.  White,  614. 
Pulley  V.  Hilton,  290. 
Purcell  V.  Macnamara,  318. 
Purnell  v.  Young,  819. 
Pye's  case,  636. 

Pyke  V.  Crouch,  327,  408,  414,  485. 
Pym  V.  Blackburn,  655. 
Pyne  v.  Dor,  575. 


Pytt  V.  Griffith,  514. 

Quarterman  v.  Cox,  143. 

Queen's   (Thel    case,    116,  213,  214,  216, 

231,  232,  239,  240,   241,   242,   243,   244, 

252,  423,  642,  643. 
Quelch's  case,  279. 
Quin  V.  Shea,  346. 

Radburn's  case,  414. 
Radnor  (Lord)  v.  Reeve,  379,  401. 
Ramadge  v.  Ryan,  176. 
Rambert  v.  Cohen,  180,  729. 
Ramkissensent  v.  Barker,  29,  31. 
Ramsbottom  v.  Buckhurst,  438. 

V.  Tunbridge,  729,  731. 
Randal  v.  Randal,  676. 
Randall  v.  Gurney,  113,  114. 

V.  Lynch,   505. 
Randle  v.  Blackburn,  444,  459,  582,   583. 
Randolph  v.  Gordon,  526. 
Raper  v.  Birkbeck,  355. 
Ravee  v.  Farmer,  335. 
Raven  v.  Hamilton,  570. 
Rawlings  v.  Desborough,  581,  595,  600, 

601,  611. 
Rawson  v.  Haigh,  468. 

V.  Walker,  660. 
Read  v.  Gamble,  561. 

V.  Jackson,  386,  759. 
Rearden  v.  Minter,  567. 
Reason  and  Tranter's  case,  730. 
Reed  v.  Jackson,  188,190,338,386,403,677. 
V.  James,  112. 
V.  Passer,  229. 
Rees  V.  Bowen,  266,  447. 

d.  Howell  V.  Bowen,  432. 
V.  Mansell,  522,  523. 
V.  Smith,  606. 

V.  Walter,  24,  329,  525,  536. 
Reeve  v.  Underbill,  598,  599. 
Reeves  v.  Newenham,  666. 
Reid  V.  Margison,  271. 
Rendall  v.  Hayward,  803,  804. 
Reniger  v.  Fogossa,  735. 
Reusse  v.  Myers,  311. 
Revett  V.  Brown,  810. 
Rex  aut  Reg.  v.  Adderbury,  131. 

V.  Addis,  734. 

V.  Adey,  214,  611. 

I'.  Aickles,  308,  562. 

V.  Allgood,  454. 

V.  Allen,  594. 

V.  Antrobus,  188,  189,  308. 

V.  Appeals  (Commissioners  of  ),  254. 

V.  Arundel,  (Countess  of),  431. 

V.  Atwood,  698,  734. 

V.  Austrey,  509. 

V.  Babb,  456. 

V.  Baker,  738. 

V.  Baldwin,  403. 

V.  Ball,  168,  800. 

V.  Balls,  622. 

V.  Barber,  204,  205. 


XXXVlll 


TABLE     OF     CASES. 


Rex  y.  Barber  and  others,  616. 
V.  Barnes,  394. 
V.  Barnett,  277. 
V.  Barnoldswick,  621. 
V.  Bathwick   (Inhabitants   of),  457, 

737. 
V.  Bavnes,  268. 
V.  Beard,  612. 
V.  Bedell,  760. 
V.  Beezley,  194,  231. 
V.  Bell,  718. 
V.  Bellamy,  267,  391. 
V.  Bellringer,  699. 
V.  Bennett,  805. 
V.  Benson,  448. 
V.  Best,  383. 
V.  Bickley,  405. 
V.  Biers,  736. 
V.  Bignold,  613. 
V.  Billinghay,  651. 
V.  Bilmore,  129. 
V.  Birch,  267. 
V.  BisphaDQ,  238. 
V.  Blacksmith's  Company,  738. 
V.  Blick,  368. 

V.  Bliss,  51,  89,  188,  468,  471. 
V.  Bodle,  195. 
V.  Bolton,  369,  400. 
V.  Borrett,  647. 
V.  Boston,  118,  119,  363,  364. 
V.  Boucher,  610. 
V.  Boutler,  734. 
V.  Bourdon,  320,  391. 
V.  Bourne,  738. 
V.  Bowler,  360,  407,  612. 
V.  Boynes,  579. 
V.  Brasier,  33. 
V.  Bray,  118. 
V.  Bromsgrove,  534. 
V.  Brooke,  196. 
V.  Broughton,  792. 
V.  Browne,  267,  391. 
V.  Brownell,  106,  107. 
V.  Buckworth,  423. 
V.  Budd,  761. 
V.  Buggs,  735. 
V.  Bull,  194. 

V.  Burbon  (Inhabitants  of),  366. 
V.  Burdett,  560,  803. 
V.  Burrows,  610. 
V.  Buttery  and  another,  339. 
V.  Buttery  and  Macnamara,  378,  400. 
V.  Cadogan  (Earl  of  ),  455. 
V.  Cambridge  (Chancellor  of),  737. 
V.  Carey,  110. 
V.  Carlisle,  613, 
V.  Carr,  444. 

V.  Ca.stIeton,  532,  533,  534,  535,  543. 
V.  Cator,  174. 
V.  Catcrall,  383. 
V.  Chapman,  195. 
V.    Cheadlc    (Inhabitants    of),    651, 

674,  726. 
V.  Chester  (Bisliop  of),  371. 


Rexv.  Chester  (Mayor  of),  697. 
V.  Chilverscoton,  383. 
V.  Christian,  268,  271. 
V.  Christopher,  230. 
V.  Clapham,  299. 
V.  Clarke,  252,  254,  469. 
V.  Clegg,  403. 
V.  Clewes,  617. 
V.  Cohen,  805. 
V.  Cole,  118. 
V.  College,  33. 
V.  CoUey,  199,  200. 
V.  Coode,  786. 
V.  Cook,  199. 
V.  Cooke,  106,  194. 
V.  Coombs,  594,  756. 
V.  Corsham,  383. 
V.  Cotton,  63,  403,  421. 
V.  Courvoisier,  612. 
V.  Cresswell,  646. 
V.  Crossley,  309. 
V.  Culpepper  (Sir  T.,)  541,  542. 
V.  Curtis,  231. 
V.  Darlington  School  (Governors  of), 

371,  401. 
V.  Davies,  697. 
V.  Davis,  308. 
V.  Debenham,  304. 
V.  De  Berenger  and  others,  204,  278, 

279,  738. 
V.  De  la  Motte,  562. 
V.  Denio  (Inhabitants  of),  534. 
V.  Dent,  175. 
V.  Donnall,  617. 
V.  Doran,  642. 
V.  Dossett,  617,  623. 
V.  Douglas,  424,  540. 
V.  Dukinfield,  495. 
V.  Duncombe,  184,  228. 
V.  Durham,  734. 
V.  Eardisland,  366,  367. 
V.  East  Farleigh,  531,  537,  638. 
V.  Edmunds,  414. 
V.  Edwards,  206,  207,  211,  229. 
V.  Elderton,  735. 
V.  Elkins,  437. 
V.  Bllicombe,  555. 
V.  Ellis,  128,  623. 
V.  Ely  (Bishop  of),  371. 
V.  Entrehman,  29. 
V.  EriswcU,  49. 
V.  Erith,  35. 

V.  Essex  (Justices  of),  786. 
V.  Everett,  768,  786. 
V.  Evesham  (Mayor  of),  313. 
V.  Exeter  County  Treasurer,  106. 
V.  Fagg,  718. 
V.  Farringdon,  522. 
V.  Fitzgerald,  305. 
V.  Fitzpatrick,  31. 
V.  Fleet  (Warden  of),  331,  363. 
V.  Fletcher,  129. 
V.  Forsyth,  281,  739. 
V.  Foster,  88,  254,  469. 


TABLE    OF    CASES. 


XXXIX 


Rex  V.  Fraser,  130. 
V.  Frederick,  130. 
V.  Fursey,  408. 
V.  Garbett,  41,  206,  207,  214. 
V.  Gardner,  280. 
V.  Gascoine,  G12. 
V.  Gaskin  (Dr.),  403. 
V.  Genge,  829. 
V.  George,  128. 
V.  Gibson,  339,  378,  507. 
V.  Gilliam,  31,  40,  628. 
V.  Gisburn,  144.  •, 

V.  Goldshede,  441. 
V.  Goodere,  199. 
V.  Gordon,  267. 

V.  Gordon  (Lord  George),  204,  281. 
V.  Grant,  806. 
V.  Gray,  129. 
V.  Greep,  738. 
V.  Greenaway,  110. 
V.  Griffiths,  230. 
V.  Grimes,  328,  385. 
V.  Grimwood,  306. 
V.  Groombridge,  748. 
V.  Grundon,  371,  401. 
V.  Guttridge,  88,  254,  410,  468,  469. 
V.  Gwyn,  456. 

V.  Haines,  315,  395,  396,  454. 
V.  Hall,  468. 

V.  Hammersmith  (Parish  of),  49. 
V.  Hammond  Page,  322,  390. 
V.  Hanson,  590. 
V.  Harberton,  552. 
V.  Harbin,  129. 
V.  Harborne,  594,  755. 
V.  Hardy,  193. 
V.  Hare,  740. 
V.  Hargrave,  734. 

V.  Harringworth,  504,  505,  507,   510. 
V.  Harris,  198,  321. 
V.  Harrow  and  Ryslip,  383. 
V.  Hartel,  612. 

V.  Haslingfield,  749,  756,  760,  818. 
V.  Hastings,  734. 
V.  Hawkins,  556,  594,  756. 
V.  Haworth,  555. 
V.  Hayes,  613. 
V.  Hazy,  594. 
V.  Hebden,  326,  384,  385. 
V.  Hedges,  180. 
V.  Heyford  (Lower)  Inhabitants   of, 

475. 
V.  Hickling,  383. 
V.  Higgins,  792. 
V.  Hilditch,  609. 
V.  Hill,  410,  512,  627. 
V.  Hinks,  128. 
V.  Hodgson,  205. 
V.  Hogg,  410,  696. 
V.  Holden,  195,  230. 
V.  Holt,  279. 
V.  Hopper,  573,  574. 
(in  aid  of  Reed)  v.  Hopper,  261. 
V.  Home,  613. 


Rex  V.  Howard,  G46. 
V.  Howe,  243. 
V.  Hube,  643. 
V.  Hucks,  790. 
V.  Hughes,  308. 
V.  Hunt,  563,  627. 
V.  Hes,  322,  390,  430. 
V.  Ipswich  (Justices  of),  738. 
V.  Jarvis,  590,  734. 
V.  Jefferies,  277. 
V.  Johnson,  88,  418,  537. 
V.  Joliffe,  409,  416. 
V.  Jones,  424,  507,  646,  734. 
V.  Jordan,  613. 
V.  Kenilworth,  383,  536,  541. 
V.  King,  270,  389. 
V.  Kingston  (Duchess  of),  185. 
V.  Kingston-upon-Hull,  729. 
V.  Kinloch,  184. 
V.  Kirby  Stephen,  543. 
V.  Knaptoft,  338,  383. 
V.  Knill,  595. 
V.  Knollys,  736. 
V.  Koops,  737. 
V.  Lafone,  129. 
V.  Laindon,  651,  674,  727. 
V.  Lambe,  717. 
V.  Layer,  562. 
V.  Ledgard,  308. 
V.  Lee,  408. 
V.  Leeds,  384. 
V.  Leicester,  552. 
V.  Leigh,  189,  386. 
V.  Leominster,  367. 
V.  Lewis,  207,  209. 
V.  Lisle,  328,  384,  385. 
V.  Littleton,  612. 
V.  Liverpool  (Mayor  of),  309. 
V.  Llandillo,  758. 
V.  Llangunnor,  651,  674,  726. 
V.  Locker,  139. 
V.  Lockup,  27. 

V.  London  (iMayor,  &c.,  of),  131. 
V.  Long,  623. 
V.  Long  Buckby,  524,  542. 
V.  Longnor  (Inhabitants  of),  510. 
V.  Lubbenham,  299. 
V.  Lucas,  454. 
V.  Luffe,  735,  752. 
V.  Lutton,  735. 
V.  Lyme  Regis,  735. 
V.  Maddox  and  others,  246. 
V.  Malings,  611. 
V.  Mann,  805. 
V.  Marsh,  194. 
V.  Marshall,  410. 
V.  Martin,  303. 
V.  Mattingley,  672,  674. 
V.  Mead,  32,  437. 
V.  Megson,  88,  254,  469. 
V.  Merceron,  206. 
V.  Merthyr  Tydvil,  729. 
V.  Middlezoy,  505,  565. 
V.  Mildrone,  31. 


xl 


TABLE    OF    CASES. 


Rex  V.  Miller,  699,  740. 

V.  Milton  (Inhabitants  of),  275. 

V.  Minns,  390. 

V.  Moors,  562. 

V.  Morpliew,  412,  423. 

V.  Morris,  448. 

V.  Mortlock,  267,  396. 

V.  Morton,  532,  533. 

V.  Motheringham,  544. 

V.  Mothersell,  309,  455,  456,  457. 

V.  Murlis,  196. 

V.  Murphy,  199,  646. 

V.  Muscot,  143,  144. 

V.  Nesbitt,  737. 

V.  Netherthong,  457,  458,  522,  525. 

V.  Newton,  646. 

V.  Nicholas,  117. 

V.  North  Bedburn,  534. 

V.  Northfeatherton,  383. 

V.  North  Petherton,  299. 

V.  North  Wingfield,  651,  674. 

V.  Nutt,  792. 

V.  Gates,  204,  282. 

V.  Oddy,  622. 

V.  Oldbury,  383. 

V.  Oldroyd,  246. 

V.  Olney,  726. 

V.  Orchard,  195. 

V.  Orrell,  612. 

V.  Orton  (Inhabitants  of),  110. 

V.  Osborne,  88. 

V.  Osbourne,  697. 

V.  Owen,  130. 

V.  Padstow,  731. 

V.  Paget  (Lord),  792. 

V.  Paine,  416. 

V.  Parker,  253,  734. 

V.  Pearce,  551,  558. 

V.  Pegler,  204. 

V.  Pembridge  (Inhabitants  of),  304. 

V.  Phillips,  371,  766,  785,  810. 

V.  Picton,  581. 

V.  Piddlehinton,  533. 

V.  Pike,  32,  117. 

V.  Pitre.     See  Rex  v.  Pike. 

V.  Poole,  779. 

V.  Powell,  30,  610. 

V.  Preston  (Inhabitants  of),  792. 

V.  Preston  (Lord),  33. 

V.  Ramsbottoin,  396. 

V.  Ramsden,  184. 

V.  Ratcliffe,  367. 

V.  Rawden  (Inhabitants  of),  533,  651, 

656. 
V.  Reader,  403. 
aut.  Reg.  V.  Reading,  206. 
V.  Reed,  645. 
V.  Rees,  647. 
V.  Reynell,  805. 
V.  Rhodes,  305,  339,  373. 
V.  Riciiards,  370. 
V.  Rider,  610. 
V.  Ridsdale,  469. 
V.  Ring,  105,  107. 


Rex  V.  Roddam,  105. 
V.  Rogers,  594,  643. 
V.  Rosser,  816. 
V.  Rowley,  793. 
V.  Ruston,  114,  116. 
V.  Ryton,  526. 
V.  Sadler,  113. 

V.  St.  Alban's  (Mayor,  &c.  of),  697. 
V.  St.  Andrew  the  Great  Cambridge 

804. 
V.  St.  Ann's,  Westminster,  335,  383. 
V.  St.  George,  232,  252. 
V.  St.  Helen's,  in  Abingdon,  531. 
V.  St.  Katherine,  299. 
V.  St.  Martin,  Leicester,  178,  179,  511. 
V.  St.  Mary,  Lambeth,  383. 
V.  St.  Mary  Magdalen,  119. 
V.  St.  Mary's,  Nottingham,  205. 
V.  St.  Pancras,  336,  345,  366,  389. 
V.  St.  Peter's,  Droitwich,  383. 
V.  St.  Sepulciire,  535. 
V.  Sarratt,  383. 
V.  Savage,  410. 

V.  Scammonden,  673,  674,  725. 
V.  Schlesinger,  173. 
V.  Scott,  699. 
V.  Searle,  175. 
V.  Serva.  30,  116. 
V.  Seweli,  261,  295,  449. 
V.  Shaftesbury  (Earl  of),  206. 
V.  Sharpe,  738. 
V.  Shaw,  277,  322. 
V.  Shellard,  220,  224,  230. 
V.  Shelley,  454. 
V.  Sheppard,  762. 
V.  Sherman,  130. 
V.  Shinfield,  727. 
V.  Silchester,  383. 
V.  Sills,  139. 
V.  Simmonds,  194. 
V.  Skibthwaite,  501. 
V.  Slaney,  204. 
V.  Smith,    139,    267,    268,   367,   389, 

391,  396,  414,  590,  730,  792. 
V.  Sow,  338,  340. 
V.  Spencer,  448. 
V.  Spragge,  562. 
V.  Stacey,  100. 

V.  Staffordshire  (Justices  of),  256. 
V.  Stamford,  647. 
V.  Stannard,  613. 
V.  Sterling,  339. 
V.  Stimpson,  609. 
V.  Stockton,  759. 
V.  Stoke,  674. 
V.  Stoke  Golding,  539,  551. 
V.  Stoke-upon-Trent,  651,  712. 
V.  Stone,  590. 
V.  Stoncbeckup,  275. 
V.  Stourbridge,  534. 
V.  Stratford-upon-Avon  (Mayor  of), 

697. 
V.  Stratton,  792. 
V.  Stoner,  195. 


TABLE    OF     CASES. 


xli 


Rex  V.  Sutton,    188,    189,   278,    280,   38G, 

407,  G27,  805. 
V.  Swatkins,  741. 
V.  Sympson,  738. 
V.  Tanner,  7B1. 
V.  Tawell,  G17. 

V.  Taylor,  29,  30,  116,  231,  403. 
V.  Teale,  201. 
V.  Thring,  267. 
V.  Throgmorton,  33. 
V.  Thursfield,  612. 
V.  Tooke,  389. 
V.  Tower,  454. 
V.  Towsend,  367,  647. 
V.  Treble,  800. 
V.  Tucker,  117. 
V.  Turk,  398. 

a.  Turner,  106,367,374,448,590,  733. 
V.  Twyning,  594,  749,  755,  759. 
V.  Upper  Boddington,  112. 
V.  Upton  Gray,  758. 
V.  Upton  St.  Leonards,  423. 
V.  Utterby,  275. 
V.  Varlo,  694,  697. 
V.  Verelst,  646,  757. 
V.  Vickery,  646. 
V.  Vincent,  194,  339,  378. 
V.  Virrier,  734,  806. 
V.  Voke,  617. 

V.  Wakefield  and  anotlier,  143. 
V.  Walker,  118,  254,  469. 
V.  Wandsworth,  805. 
V.  Ward,  267,  391,  397. 
V.  Waslibrooke,  402. 
V.  Watson,   41,   115,    174,   192,    194, 

201,  210,  213,  237,    238,    551,    555, 

558,  563,  623. 
V.  Watts,  786. 
V.  Webb,  199,  734. 
V.  Welsh,  577. 
V.  Wheelock,  335,  338,  383, 
V.  Whiston,  749,  757. 
V.  Whitchurch  (Inhabitants  of),  522, 
V.  White,  30,  460. 
V.  Whiting,  118,  613. 
V.  Whittlebury,  778. 
V.  Wick.  St.  Lawrence,  338,  345,  383. 
V.  Wickham,  675,  726. 
V.  Wilde,  735. 
V.  Williams,  33,  117,  627. 
V.  Wilshaw,  410. 
V.  Witherby,  540. 
V.  Withers,  281. 
V.  Witney,  191. 
V.  Woburn,  131,  240. 
V.  Wood,  423,  424. 
V.  Woodchester,  383. 
V.  Woodfall,  776. 
V.  Woodhead,  231. 
V.  Woodley,  112. 
V.  Wooldale,  679. 
V.  Wooler,  806. 
I).  Worthing  (Inhabitants   of),   486, 

491,  493,  729. 


Rex  V.  Wrangle,  656,  729. 
V.  Wye,  38.!. 
V.  Wylde,  199. 
V.  Wylie,  623. 
V.  Yates,  734. 

V.  Yeovely,  267,  391,  393,  396. 
V.  Yewin,  213. 
V.  Yorkshire  (Justices  of  East  Riding 

of),  786. 
V.  York  (Mayor  of),  384. 
Reynolds  v.  Fenton,  358,  737. 

V.  Kennedy,  781. 
Rhindv.  Wilkinson,  548. 
Ricardo  v.  Garcias,  333,  352,  354. 
Rich  V.  Jackson,  659,  662,  664. 
Richards  v.  Bassett,  190,  453. 

V.  Easto,  276. 
Richardson  v.  Allen,  245. 

V.  Anderson,  268,  281. 
V.  Fell,  603. 
V.  Fisher,  805. 
V.  Hellish,  305,  306. 
V.  Watson,  654. 
V.  Williams,  364. 
Rickards  v.  Murdock,  176. 
Ridgway  v.  Ewbank,  600. 

V.  Philip,  615. 
Ridley  v.  Gyde,  468. 
Ridout  V.  Bristow,  659. 
Rigby  V.  Walthew,  120. 
Rigge  V.  Burbidge,  338. 
Ripley  v.  Thompson,  121. 
Rishton  v.  Nisbitt,  114. 
Ritchie  v.  Bousfield,  802. 
Roach  V.  Garvan,  380,  381,  383,  386. 
Robb  V.  Starkey,  552. 
Roberts  v.  Allat,  206. 
V.  Barker,  712. 
V.  Bradshaw,  548. 
V.  Croft,  809. 
V.  Doxon,  177,  645. 
V.  Eddington,  279. 
V.  Fortune,  349. 
V.  Hayward,  761. 
V.  Herbert,  627. 
V.  Hughes,  805. 
V.  Justice,  486. 
Robertson  v.  French,  703. 

V.  Jackson,  653,  702,  705. 
V.  Money,  704. 
V.  Struth,  354. 
Robins  v.  Cruchley,  377. 

V.  Maidstone  (Lord),  451,  641. 
Robin's  case,  325,  339. 
Robinson  v.  Brown,  559. 
V.  Cook,  801. 
V.  Gleadow,  800. 
V.  Lawrence,  807. 
V.  Macdonnell,  661. 
V.  Markis,  429. 
Robinson's  case,  337. 
Robson  V.  Eaton,  324. 
Roche  V.  Chapman,  603, 
Roche's  case,  383, 


xlii 


TABLE    OF    CASES. 


Roden  v.  Ryde,  448,  521. 
Rodwell  V.  Redge,  757. 
Roe  d.  Brune  v.  Rawlings,  486. 
V.  Davis,  508,  564. 
V.  Day,  237,  606,  609. 
d.  Haledame  v.  Harvey,  563,569,  847. 
V.  Ireland,  286. 
V.  Parker,  453. 

d.  Pellatt  V.  Ferrars,  445,  446. 
V.  Popham,  714. 
V.  Rawlings,  568. 
V.  Ward,  761. 
V.  Wilkins,  567. 
Rogers  v.  Allen,  94,  454. 
V.  Custance,  560. 
V.  Goddard,  342. 
V.  Wood,  188,  360. 
Rolf  w.  Dart,  271,  550. 
Rolfe  V.  Hampden,  172. 
RoUeston  v.  Hibbert,  661. 
Rookwood's  case,  209,  238. 
Roscommon's  (Earl  of)  case,  302. 
Rose  V.  Blakemore,  213. 
V.  Bryant,  479. 
V.  Haycock,  784. 
V.  Savory,  582. 
Roswell  V.  Bennett,  714. 
Ross  V.  Hunter,  591. 
Rothero  v.  Elton,  122. 
Rouch  V.  Great  Western  Railv?ay  Com- 
pany, 467, 468. 
Rowe  V.  Brenton,  177,  284,  287,  293,  407, 

431,  434,  480,  609,  619,  645,  790. 
Rowland  v.  Ashby,  719. 
V.  Bernes,  599. 
Rowlands  v.  Samuel,  622. 
Rowley's  case,  433. 
Rowntree  v.  Jacob,  719. 
Roxburghe  (Duke  of)  v.  Roberton,  711. 
Rudd  V.  Wright,  189. 
Ruding  V.  Newell,  619. 
Rush  V.  Peacock,  499. 

V.  Smith,  196,  197. 
Rushworth  v.  Pembroke   (Countess   of), 

329,  412. 
Russell  V.  Dickson,  438,  737. 
V.  Dunskey,  729. 
V.  Smyth,  358,  448. 
Rutland's  (Countess  of)  case,  652,  662. 
Rutter  V.  Chapman,  371. 

Sadler  v.  Robins,  341. 
Sage  V.  Robinson,  137. 
St.  George  and  St.  Margaret,  760. 
Sainthill  v.  Bound,  197. 
Saloucci  V.  Woodmass,  380,  381. 
Saltc  V.  Thomas,  308. 
Salvador  v.  Hopkins,  703. 
Sampson  v.  Tothili,  361. 
Samuel  v.  Evans,  274. 
Sanchar's  (Lord)  case,  385. 
Sariilersoii  v.  Nestor,  335. 
Sandwcll  v.  Sandwell,  180. 
Saundcrson  v.  Pij)er,  654,  675. 


Saville  v.  Farnhara,  (Lord),  805. 

V.  Robertson,  022. 
Saxby  v.  Kirkus,  274. 
Saye  and  Sele,  (Barony  of),  545. 
Sayer  v.  Glossop,  206,  299,  302,  448. 

V.  Kitchen,  560. 
Sayer's  case,  730. 
Sayre  v.  Rockford,  (Earl  of),  618. 
Scheibel  v.  Fairbain,  772. 
Schmalz  v.  Avery,  665. 
Scholes  V.  Chadwick,  486. 
Scott  V.  Clare,  827. 

V.  Jones,  561. 

V.  Lewis,  448,  596,  599. 

V.  Shearman,  378. 

V.  Waithman,  568. 

V.  Watkinson,  805. 
Seago  V.  Deane,  716. 
Scale  V.  Evans  and  another,  615. 
Searle  v.    Barrington   (Lord),   478,   479, 

750. 
Seddon  v.  Tutop,  335,  336. 
Selby  V.  Harris,  449. 

V.  Hills,  114. 
Sells  V.  Hoare,  117. 
Senior  v.  Armitage,  711. 
Sergeson  v.  Sealy,  289,  380,  406. 
Serjeant  v.  Chafy,  800. 
Sewell  V.  Corp,  295. 

V.  Evans,  448,  521. 
Seymour's  (Sir  E.)  case,  544,  568. 
Sharp  V.  Scoging,  238. 
Sharpe  v.  Lamb,  554. 
Shatter  v.  Friend,  734. 
Shaw  V.  Roberts,  790. 
Shearm  v.  Burnard,  340. 
Shelburne  v.  Inchiquin,  675. 
Shelling  v.  Farmer,  659. 
Shelton  v.  Cross,  737. 

V.  Livius,  656,   664. 
Shepherd  v.  Chester,  (Bishop  of),  807. 
V.  Shepherd,  715. 
V.  Shorthose,  259,  395. 
Shepherdess  (case  of  the),  382. 
Sheppard  v.  Gosnold,  699. 
Shergold  v.  Boone,  677. 
Sherriff  y.  Cadell,  311,  312. 
Sherwin  v.  Charges,  322,  337,  408,  415. 
Shillito  w.Claridge,  429. 
Shipton  V.  Thornton,  App. 
Shore  v.  Wilson,  702. 
Short  V.  Lee,  474,  476,  477,  482,  647. 
Shute  V.  Robins,  770. 
Shuttle  worth  v.  Nicholson,  611. 
Sidaway  v.  Hay,  346. 
Sideways  v.  Dyson,  224,  561. 
Siebert  v.  Spooner,  784. 
Sills  V.  Brown,  175. 
Simons  v.  Henderson,  427. 
V.  Johnson,  722. 
V.  Smith,  120. 
Simpson  v.  Clayton,  807. 

V.  Dismore,  448,  521. 
V.  Henderson,  659. 


TABLE    OF    CASES. 


xliii 


Simpson  v.  Margitson,  G53,  702,  709,  787. 
V.  Pickering,  329. 
V.  Smith,  196. 
V.  Thoreton,  543,  563. 
Sims  V.  Kitchen,  557. 
Sinclair  v.  Baggaley,  502,  758. 
V.  Fraser,  346,  347. 
V.  Sinclair,  131,  132,  137,  324. 
V.  Stevenson,  184,  553. 
Singleton  v.  Barrett,  729. 
Sissons  V.  Dixon,  757. 
Skilbeck  v.  Garbett,  763. 
Skipwith  V.  Green,  461,  720. 

V.  Shirley,  544. 
Slade's  case,  737. 
Slane  Peerage,  271,  273,  287,  527,  545, 

550. 
Slaney  v.  "Wade,  190. 
Slark  V.  Highgate   Archway   Company, 

729. 
Slater  v.  Hodgson,  524. 
Slatterie  v.  Pooley,  506,  648,  729,  827. 
Smart  v.  Hyde,  656. 

V.  Prujean,  663. 

V.  Rayner,  600. 
Smartle  v.  Williams,  495,  574,  575. 
Smith  V.  Beadnell,  206,  214. 

V.  Boucher,  738. 

V.  Bradshaw,  636. 

V.  Buchanan,  346. 

V.  Cartwright,  647,  758. 

V.  Doe  d.  Jersey,  772,  774. 

V.  East  India   Company,   42,  192, 
256. 

V.  Fuge,  310. 

V.  Gibson,  333. 

V.  Harris,  118. 

V.  Henderson,  448. 

V.  Hixon,  627. 

V.  Jeffreys,  702. 

V.  Johnson,  335. 

V.  Lyon,  763. 

V.  Martin,  451,  592,  593. 

V.  Morgan,  180,  181. 

V.  Nicholls,  403. 

V.  Nicolls,  341,  353. 

V.  Page,  803. 

V.  Prager,  118,  122. 

V.  Royston,  334. 

V.  Rummens,  332,  364,  365. 

V.  Sleap,  615,  790. 

V.  Thompson,  786. 

V.  Veale,  416. 

V.  Walton,  659,  713. 

V.  Whittingham,  474. 

V.  Wilkins,  619. 

V.  Wilson,  654,  702,  712. 

V.  Woodward,  500. 

V.  Young,  459,  557. 
Smithson's  (Sir  Hugh),  case,  406. 
Smyth  V.  Latham,  797. 
Snaith  v.  Mingaj',  674. 
Snook  V.  Mattock,  792. 
Snow  V.  Phillips  439. 


Snowball  v.  Vicaris,  725. 
Solly  V.  Hinde,  660,  661. 
Solomons  v.  Campbell,  183. 
Somerset  (Duke  of),  v.  France,  619. 
Southampton  Dock  Company  v.  Richards, 

313. 
Southey  v.  Nash,  199. 
Soward  v.  Leggatt,  602. 
Sowell  V.  Champion,  803. 
Spargo  V.  Brown,  85,  464,  474. 
Sparing  v.  Drax,  444. 
Sparkes  v.  Barratt,  615. 
Sparry's  case,  333. 
Spence  v.  Stuart,  113,  114. 
Spencer  i;.  Billing,  177,  645. 

V.  Goulding,  122. 
Spicer  V.  Burgess,  502. 

V.  Cooper,  653,  705. 
Spiers  v.  Morris,  484. 

V.  Parker,  590,  759. 
Spilsbury  v.  Micklethwaithe,  627. 
Spink  V.  Tenant,  736. 
Spooner  v.  Gardiner,  606,  607. 

V.  Payne,  514,  516. 
Spring  V.  Eve,  277,  735. 
Stafford  v.  Clarke,  335. 
Stafford's  (Lord)  case,  201. 
Stainer  v.  Droitwich  (Burgesses  of),  314. 
Stammers  v.  Dixon,  699,  701,  787. 
Stamp  V.  Ayliffe,  285. 
StancliflFe  v.  Clarke,  806. 
Standen  v.  Standen,  670,  685,  754. 
Stanley  v.  Fielden,  583. 

V.  White,  620. 
Stanton  v.  Paton,  599. 

V.  Styles,  359. 
Stapleton  v.  Croft,  141,  142. 
Startup  V.  Macdonald,  774,  780. 
Statutes : 

4  Edw.  1,  287,  288,  292,  407,  408. 
34  Edw.  3,  c.  13,  404. 

36  Edw.  3,  c.  13,  404. 
46  Edw.  3,  256. 

9  Hen.  6,  c.  11,  372. 
23  Hen.  6,  c.  9,  274. 

1  Hen.  8,  c.  8,  288,  403. 
21  Hen.  8,  c.  13,  285. 

27  Hen.  8,  c.  16,  573. 

2  &  3  Edw.  6,  c.  1,  738. 
2  &  3  Edw.  6,  0.  8,  404. 

5  &  6  Edw.  6,  c.  1,  738. 

1  &  2  Phil.  &  Mary,  c.  10,  38. 

1  &  2  Phil.  &  Mary,  c.  13,  61. 

2  &  3  Phil.  &  Mary,  c.  10,  61. 
2  &  3  Phil.  &  Mary,  c  13,  38. 
5  Eliz.  c.  4,  277. 

5  Eliz.  c.  9,  103,  104. 
27  Eliz.  c.  9,  s.  8,  259. 

1  Jac.  1,  c.  11,  744. 

4  Jac.  1,  c.  1,  33. 
21  Jac.  1,  c.  16,  750. 
21  Jac.  1,  c.  27,  744. 
13  &  14  Car.  2,  c.  4,  756. 
19  Car.  2,  c.  6,  744. 


xliv 


TABLE     OF    CASES. 


Statutes  : — continued. 
29  Car.  2,  c.  3,  459. 

3  &4  W.  &  M.  c.  11,  131. 

4  &  5  Will.  3,  c.  23,  771. 

7  Will.  3,  c.  3,  33,  107,  610. 

7  &  8  Will.  3,  c.  7,  295. 

8  &  9  Will.  3,  c.  30,  508. 

9  &  10  Will.  3,  c.  15,  399,  505. 
1  Anne,  c.  9,  s.  3,  34,  106. 

1  Anne,  c.  18,  131. 

4  &  5  Anne,  c.  16,  274. 

5  Anne,  c.  14,  771. 

7  Anne,  c.  20,  504,  577. 

10  Anne,  c.  18,  574,  576. 

4  Geo.  2,  c.  28,  483. 

5  Geo.  2,  c.  30,  418. 

8  Geo.  2,  c.  6,  576. 

8  Geo.  2,  c.  16,  131. 

9  Geo.  2,  c.  36,  294. 

11  Geo.  2,  c.  19,  449. 
17  Geo.  2,  c.  38,  304. 

19  Geo.  2,  c.  37,  790. 
24  Geo.  2,  c.  23,  738. 
26  Geo.  2,  c.  33,  297. 

2  Geo.  3,  c.  22,  304. 
13  Geo.  3.  c.  31,  105. 

13  Geo.  3,  c.  63,  424,  427. 

20  Geo.  3,  c.  57,  521. 
26  Geo.  3,  c.  77,  647. 

26  Geo.  3,  c.  82,  647. 

27  Geo.  3,  c.  29,  131. 
34  Geo.  3,  c.  64,  383. 

41  Geo.  3,  c.  90,  276. 

42  Geo.  3,  c.  46,  304. 
42  Geo.  3,  c.  85,  424. 

42  Geo.  3,  c.  107,  594. 

43  Geo.  3,  c.  140,  104. 

44  Geo.  3,  c.  92,  105. 

44  Geo.  3,  c.  102,  104. 

45  Geo.  3,  c.  92,  105. 

45  Geo.  3,  c.  126,  204. 

46  Geo.  3,  c.  37,  203,  205. 

47  Geo.  3,  c.  1,  418. 

47  Geo.  3,  c.  68,  307. 

48  Geo.  3,  c.  149,  455. 

49  Geo.  3,  c.  121,  418. 

50  Geo.  3,  c.  48,  311. 

52  Geo.  3,  c.  146,  297,  302,  303. 

53  Geo.  3,  c.  70.    See  54  Geo.  3,  c.  70. 

54  Geo.  3,  c.  15,  424. 

54  Geo.  3,  c.  70,  127,  131. 
54  Geo.  3,  c.  137,  346. 
54  Geo.  3,  c.  170,  204, 
58  Geo.  3,  c.  45,  280. 

58  Geo.  3,  c.  69,  205. 

59  Geo.  3,  c.  12,  419. 

1  Geo.  4,  c.  101,  424. 
1  &  2  Geo.  4,  c.  21,  204. 

3  Geo.  4,  c.  126,  500. 

4  Geo.  4,  c.  76,  297. 
B  Geo.  4,  c.  96,  127. 

5  &  6  Geo.  4,  c.  84,  295. 

6  Geo.  4,  c.  16,  550. 
G  Geo.  4,  c.  50,  .'119. 


Statutes  : — continued, 

6  Geo.  4,  c.  80,  418. 

7  Geo.  4,  c.  57,  398. 

7  Geo.  4,  c.  64,  34,  38,  61,  105,   106, 

416,  417,  433,  719. 
7  &  8  Geo.  4,  c.  27,  594. 
7  &  8  Geo.  4,  c.  28,  295,  405. 
7  &  8  Geo.  4,  c.  29.  131. 
7  &  8  Geo.  4,  c.  30J  398. 
7  &  8  Geo.  4,  c.  53,  647. 
9  Geo.  4;  c.  14,  826. 
9  Geo.  4,  c.  15,  633. 
9  Geo.  4,  c.  31,  365. 
9  Geo.  4,  c.  32,  32. 
9  Geo.  4,  c.  40,  383. 
9  Geo.  4,  c.  56,  398. 
1  Will.  4,  c.  22,  424,  434. 

1  &  2  Will.  4,  c.  56,  739. 

2  Will.  4,  c.  1,  283. 

2  &  3  Will.  4,  c.  39,  362,  438. 

2  &  3  Will.  4,  c.  42,  809. 

2  &  3  Will.  4,  c.  64,  738. 

2  &  3  Will.  4,  c.  71,  750. 

2  &  3  Will.  4,  c.  114,  264,  418,  739. 

2  &  3  Will.  4,  c.  120,  311. 

3  &  4  Will.  4,  c.  27,  490. 

3  &  4  Will.  4,  c.  42,  24,  109,  124,  134, 

325,  388,  634,  742,  750. 
3  &  4  Will.  4,  c.  49,  32. 
3  &  4  Will.  4,  c.  53,  127. 
3  &  4  Will.  4,  c.  82,  33. 

3  &  4  Will.  4,  c.  93,  306. 

4  &  5  Will.  4,  c.  75,  309. 

4  &  5  Will.  4,  c.  76,  109,  739. 

5  &  6  Will.  4,  c.  19,  307. 

5  &  6  Will.  4,  c.  62,  414,  416. 

5  &  6  Will.  4,  c.  76,  438,  458. 

6  &  7  Will.  4,  c.  71,  109. 
6  &  7  Will.  4,  c.  76,  307. 

6  &  7  Will.  4,  c.  86,  297,  299,  302, 

739. 
6  &  7  Will.  4,  c.  89,  106. 
6  &  7  Will.  4,  c.  106,  739. 

6  &  7  Will.  4,  c.  114,  319,  610,  612. 

7  Will.  4  &  1  Vict.  c.  22,  209. 

7  Will.  4  &  1  Vict.  c.  26,   126,  511, 

513,  667,  688,  715. 
7  Will.  4  &  1  Vict.  c.  68,  106. 
7  Will.  4  &  1  Vict.  c.  73. 
1  Vict.  c.  26,  156. 
1  Vict.  0.  44,  106. 
1  Vict.  c.  76,  371. 
1  Vict.  c.  78,  458. 
1  &  2  Vict.  c.  77,  33. 
1  &  2  Vict.  c.  94,  255,  258,  262,  739. 
1  &  2  Vict.  0.  105,  30,  31. 
1  &  2  Vict.  c.  110,  108,  205. 
3  &  4  Vict.  c.  26,  127,  131. 
3  &  4  Vict.  c.  65,  792. 
3  &  4  Vict.  c.  92,  299,  300. 
3  &  4  Vict.  c.  110,  127. 
5  &  6  Vict.  c.  69,  428. 
5  &  6  Vict.  c.  79,  311. 
5  &  6  Vict.  c.  84,  406. 


TABLE     OF    CASES. 


xlv 


Statutes  : — 

con 

tinued. 

5  &  6  Vict. 

c. 

100 

,  739. 

5  &  6  V 

ict. 

c. 

116 

,  108, 

504 

,  739 

6  &  7  V 

ct. 

c. 

18, 

308. 

6  &  7  Vict. 

c. 

65, 

739. 

6  &  7  Vict. 

c 

85 

22, 

25, 

118, 

125, 

131 

513. 

7  &  8  V 

ct. 

c. 

G5, 

283. 

V  &  8  V 

ict. 

c. 

81, 

302. 

7  &  8  V 

ct. 

c. 

96, 

108. 

7  &  8  V 

ct. 

c. 

101 

,281, 

734 

7  &  8  V 

ct. 

c. 

110 

,  456. 

7  &  8  V 

ct. 

c. 

112 

,  307. 

7  &  8  V 

ct. 

c. 

113 

,  307. 

8  &  9  V 

ct. 

c. 

10, 

734. 

8  &  9  V 

ct. 

c. 

16, 

127, 

457. 

8  &  9  V 

ct. 

c. 

18, 

127. 

8  &  9  V 

ct. 

c. 

20, 

127. 

8  &  9  V 

ct. 

c. 

48, 

34. 

8&  9  V 

ct. 

c. 

85, 

647. 

8  &9  V 

ct. 

c. 

87, 

647. 

8  &  9  V 

ct. 

c. 

89, 

310. 

8  &  9  V 

ct. 

c. 

93, 

647. 

8  &  9  V 

ct. 

c. 

100 

,  406. 

8  &  9  V 

ct. 

c. 

106 

,  459. 

8  &   9    \ 

act 

c.    113,    269, 

277, 

279, 

281 

282 

,    297,    388, 

735, 

736, 

740. 

8  &  9  Vict.  c.  118,  109. 

9  &  10  Vict.  c.  95,  27,  39,    108,    127, 

140,  265,  396,  739. 

10  &  11  Vict.  c.  82,  398. 
10  &  11  Vict.  c.  102,  108. 

10  &  11  Vict.  c.  104,  109. 

11  &  12  Vict.   c.  42,    105,    107,    108, 

110,  408,  433,  651,  719. 
11  &  12  Vict.  c.  43,  110,  398. 

c.   44,   370,   397,   398, 


11  &  12  Vict. 

401. 
11  &  12  Vict. 
11  &  12  Vict. 

11  &  12  Vict. 

12  Vict.  c.  11 
12  &  13  Vict. 


c.  59,  398. 
c.  70,  260. 
c.  83,  283. 
398. 
c.  29,  310. 


12  &  13  Vict.  c.  68,  302. 
12  &  13  Vict.   c.    106,    34,    108,    110, 
264,  401,  418. 

12  &  13  Vict.  c.  109,  258,  261,  262. 

13  Vict.  c.  5,  109. 

13  &  14  Vict.  c.  7,  311. 
13  &  14  Vict.  c.  21,  278. 

13  &  14  Vict.  c.   93,   306,   307, 

565. 

14  &  15  Vict.  c.  6,  s.  16,  295. 
14  &  15  Vict.  c.  90,  499. 
14  &   15   Vict.   c.    99,    28,    140, 

281,  310,  388,  391,  399,  411,  513, 

739,  740. 
14  &  15  Vict.  c.  100,  637. 
Stead  V.  Heaton,  65,  480. 
Steadman  v.  Duhamel,  674. 
Stedman  v.  Gooch,  393. 
Steel  V.  Prickett,  187. 
Steele  v.  Mart,  666. 


427, 


271, 


Steinkeller   v.    Newton,    180,    425,    426, 

434. 
Stennel  v.  Hogg,  747. 
Stephen  v.  Gwenap,  474. 
Stevens  v.  Aldridge,  799. 

V.  Clarke,  370. 
Stewart  w.  Barnes,  124,  125. 

V.  Lawton,  696. 
Still  V.  Halford,  449. 
Stirling's  case,  400. 
Stebart  v.   Dryden,    191,    215,   240,   253, 

512. 
Stock  V.  Denew,  416. 
Stockdale  o.  Hansard,  349,  360. 
Stockfleth  V.  De  Tastet,  206,  214. 
Stoddard  v.  Palmer,  629. 
Stodden  v.  Harvey,  772,  773. 
Stokes  V.  Bate,  400. 

V.  Carne,  310. 
Stone  V.  Bale,  720. 

V.  Blackburn, 115. 
V.  Metcalf,  507. 
Stones  V.  Byron,  611. 
Stroke  v.  Storke,  668, 
Strothert  v.  James,  486. 
Stracy  v.  BlaKe,  641. 
Straker  v.  Graham,  776,  780. 
Stratford's  case,  371. 
Stratton  v.  Rastall,  660,  719. 
Streeter  v.  Bartlett,  449,  504. 
Strickland  v.  Ward,  369. 
Strode  v.  Falkland,  669. 

V.  Russell,  670. 
Strode  v.  Winchester,  474. 
Strong  V.  Dickenson,  113. 
Strother  v.  Barr,  642. 

V.    Hutchinson,    791,    792,    797, 

809. 
V.  Willan,  311. 
Strutt  V.  Bovington,  328,  330,  336,  409. 
Stuart  V.  Barnes.    See  Stewart  v.  Barnes. 
V.  Greeuall,  291. 
V.  Rogers,  810. 
Studdy  V.  Sanders,  447. 
Sturge  V.  Buchanan,  235,  548,  558,  560, 

580,  582. 
Sturm  V.  Jaffier,  557. 
Style  V.  Wardle,  665,  720. 
Summers  v.  Moseley,  196. 
Suramersett  v.  Adamson,  827. 
Surtees  v.  Hubbard,  558. 
Sussex  (Earl  of)  v.  Temple,  444. 
Sussex  Peerage  case,  63,   175,    176,   465, 

474,  480,  492,  512. 
Sutton  St.  Nicholas  v.  Leverington,  383. 

V.  Temple,  708. 
Swain  V.  Kennerley,  687. 

V.  Lewis,  558. 
Sweetapple  v.  Jesse,  747. 
Swinnerton  w.  Stafford  (Marquis  of),  292, 

526. 
Swire  v.  Bell,  513,  521. 
Syers  v.  Bridge,  176,  702. 
V.  Jonas,  713. 


xlvi 


TABLE     OF    CASES. 


Sykes  v.  Dunbar,  193. 
Sylvester  v.  Hall,  606. 
Symes  v.  Larby,  808. 
Symmers  v.  Regem,  "796. 

Talbot   V.    Hodson,    509,    510,  511,    518, 
530,  T28. 
V.  Lewis,  443. 
Tamm  v.  Williams,  358. 
Tanner  v.  Bean,  626. 

V.  Taylor,  180,   185. 
Taplin  v.  Atty,  583. 
Tapp  V.  Lee,  763. 
Tarleton  v.  Tarleton,  351. 
Tatlock  V.  Harris,  798. 
Taylor  v.  Barclay,  739. 
V.  Briggs,  705. 
V.  Clerason,  321,  370. 
V.  Cohen,  654. 
V.  Cole,  439. 
V.  Cooke,  760. 
V.  Devey,  304. 
V.  Jones,  574. 
V.  Lawson,  199. 
V.  Osborne,  565. 
V.  Parry,  621. 
V.  Willans,  95,  797. 
Ex  parte,  300. 
Tebbutt  V.  Selby,  759. 
Teed  v.  Martin,  310,  543. 
Temperley  v.  Scott,  432. 
Tennant  v.  Hamilton,  200. 
Terry  v.  Huntington,  379. 
Tewkesbury  (Bailiff's  of)  y.  Bricknell,697. 
Thacker  v.  Moates,  753. 
Thanet  (Lord)  v.  Forster,  289. 
Thellusson  v.  Costing,  279. 
Theobald  v.  Treggott,  122. 
Thelford  case,  309,  455. 

(Mayor  of)  v.  Tyler,  761. 
Thomas  v.  Ansley,  390. 
V.  Connell,  468. 
V.  David,  199,  200,  201. 
V.  Fraser,  676,  703. 
d.  Evans   v.    Thomas,  684,   685, 

686. 
V.  Jenkins,  49,  186,  187. 
V.  Newton,  214. 
V.  Tucker,  205. 
Thomkins  v.  Hill,  800. 
Thompson  v.  Blackhurst,  359. 
V.  Donaldson,  339. 
V.  Giles,  766. 
V.  Trcvanion,  254,  469. 
Thomson  v.  Southwell,  738. 
Thorpe  v.  Barber  and  another,  131. 

V.  Ifowden,  792. 
Thornton  v.  Royal  E.xchange  Assurance 

Conii)any,  174. 
Thoroughgood's  case,  510. 
Thresh  v.  Rake,  725. 
Tiirogmorton  v.  Walton,   761. 
Til  uric  V.  Madison,  576. 
Thurston  v.  Dclahay,  513. 


Thurston  v.  Slatford,  791,  792. 

Tickle  V.  Brown,  471,  487. 

Tidmus  v.  Lees,  342. 

Tiley  v.  Cowling,  362. 

Tilley's  case,  409,  411. 

Tindal  v.  Brown,  774,  776,  777,  780. 

Tinkler  v.  Walpole,  310,  574,  575. 

Tinkler's  case,  800. 

Tinney  v.  Tinney,  652. 

Title  V.  Grevet,  204. 

Tod  V.  Winchelsea  (Earl  of),  191,  433. 

Todd  V.  Maxfield,  324,  342. 

V.  Stewart,  335. 
Toll  V.  Lee,  506. 
Tomkins  v.  Ashby,  452. 

V.  Attorney-General,  306. 
Tooker  v.  Beaufort  (Duke  of),  259,  287. 

V.  Beaufort,  421. 
Tooke's  case,  268. 
Toomes  v.  Etherington,  405. 
Topham  v.  McGregor,  177,  183,  645. 
Toosey  v.  Williams,  548,  551. 
Torrington's  case,  76,  493. 
Touissant  v.  Martinnant,  667. 
Towers  v.  Moore,  675,  678. 
Townend  v.  Downing;  121. 
Toymbee  v.  Brown,  290. 
Tracy  Peerage  case,  174,  838. 
Travis  v.  Chaloner,  330,  444. 
Tregany  v.  Fletcher,  737. 
Trelawney  v.  Coleman,  759. 
Trelawny  v.  Colman,  469. 
Trethewy  v.  Ackland,  402. 
Trevivan  v.  Lawrence,  343,  461,  462. 
Trewhitt  v.  Lambert,  541,  656,  729. 
Trimlestown  (Lord)  i;.  Kemmis,  325,  441, 

485,  487,  492,  523,  529,  580,  795. 
Trimmer  v.  Bayne,  714. 
Trist  V.  Johnson,  555. 
Truyman  v.  Loder,  665,  707,  751. 
Tucker  v.  Inman,  737. 

V.  Wilkins,  293,  315. 
Tufton  V.  Whitmore,  414,  432,  434. 
Turner?;.  Ambler,  782,  783. 

V.  Crisp,  479,  750. 

V.  Deane,  722. 

V.  Merry  weather,  109. 

V.  Pearte,  115,  143,  144,  145. 
Twyne's  case,  784. 
Tyler's  case,  786. 
Tyrrell  v.  Holt,  595. 
Tyrrwhit  v.  Wynne,  550,  568,  619. 

Udall  V.  Walton,  136. 
Uhde  V.  Walters,  661,  704. 
Uncle  V.  Watson,  65. 
Underbill  v.  Durham,  286. 

V.  Witts,  643. 
Upton  V.  Curtis,  120,  133. 
Urquhart  \'.  Barnard,  702. 

Vacher  v.  Cocks,  89,  467,  568. 
Vaillant  v.  Dodemead,  40. 
Vain  V,  Whittington,  572. 


TABLE    OF    CASES. 


xlvii 


Valine  V.  Dumergue,  358. 

Vanderdonckt  v.  Thelluson,  17G. 

Van  Nyvel  v.  Hunter,  806. 

Van  Sandau  v.  Turner,  737. 

Vane's  (Sir  H.)  case,  792. 

Van  Onieron  v.  Dowick,  2  79,  757,  763. 

Varicas  v.  French,  412,  429,  518. 

Vauglian  v.  Martin,  180. 

Vaux  Peerage,  282,  302,  314. 

Venafra  v.  Johnson,  717,  719. 

Vere  v.  Lewis,  798. 

Vernon  v.  Hankey,  802. 

Vernon's  case,  660. 

Vice  V.  Anson  (Lady),  555. 

Villers  v.  Bearaont,  660,  723. 

V.  Villers,  543. 
Vincent  v.  Cole,  642,  656. 
Vines  v.  Reading  (Corporation  of),  797. 
Vooght  V.  Winch,  323,  326,  343,  344. 
Vowles  V.  Miller,  626. 

Wade  V.  Simeon,  135,  145. 
Wadley  v.  Bayliss,  700. 
Wagstaff  v.  Wilson,  572. 
Wainwright  v.  Clement,  784, 
Wakeman  v.  West,  290,  472,  473. 
Walburgh  v.  Saltonstall,  731. 
Waldron  v.  Coombe,  279,  295. 
Walker  v.  Beauchamp,  303,  535. 

V.  Broadstock,  471,  490. 

V.  Burnell,  786. 

V.  Collick,  435. 

V.  Giles,  133,  134. 

V.  Walker,  678. 

V.  Wingfield,  298. 

V.  Wittur,  346,  347,  351,  381. 
Wallace  (Administrator)  v.  Cook,  305. 
Waller  v.  Prakeford,  808. 

V.  Horsfall,  541,  570. 
Wallis  V.  Delancey,  513,  515,  519,  520. 

V.  Atcheson,  237. 
Walpole  (Lord)  v.  Cholmondeley  (Lord), 

692. 
Walsh  V.  Stockdale,  467. 

V.  Trevannion,  676. 
Walter  v.  Haynes,  763. 

V.  Thompson,  136. 
Walters  v.  Lewis,  468. 

V.  Rees,  114. 
Walton  V.  Shelley,  728. 
Ward  V.  Man,  128. 

V.  Mason,  808. 
V.  Wells,  412,  513,  518. 
Warden  v.  Fermor,  516. 
Waring  v.  Bowles,  514. 
Warren  v.  Greenville,  474. 

V.  Stagg,  663,  725. 
Warringer  v.  Giles,  309. 
Washington  v.  Brymer,  750. 
Watkins  v.  Towers,  806. 
Watson  V.  Bevern,  204. 

V.  King,  305. 

V.  Moore,  580,  581. 

V.  Peache,  786. 


Watson's  case,  167,  194,  215. 
Waugh  V.  Bussell,  501. 
Weaver  v.  Clifford,  737. 
Webb  V.  Plummer,  712. 
V.  Pritchett,  435. 
V.  Salmon,  660,  666. 
V.  Smith,  244. 
V.  Taylor,  114. 
Webber  v.  Budd,  130. 
Wedgworth  v.  Hartley.     See  Wedgwood 

V.  Hartley. 
Wedgewood  v.  Hartley,  120. 
Wedrington's  (Dr.)  case,  401. 
Weeks  v.  Sparke,  46,  48,  50,  187. 
Weld  ('.  Hornby,  696,  697. 
Weller  v.  Foundling  Hospital  (Governors 

of),  131. 
Wells  Harbor  case,  621. 

V.  Jesus  College,  Oxford,  189. 
V.  Williams,  31. 
Welsh's  case,  417. 
Welstead  v.  Levy,  788. 
West  V.  Baxendale,  782. 
V.  Blakely,  657. 
V.  Steward,  502. 
West's  case,  205. 
Weston  V.  Ernes,  661. 

V.  Vaughton,  285. 
Wey  V.  Yelley,  737. 
Wetherston  v.  Edginton,  565,  572. 
Wharam  v.  Routledge,  561,  580. 
Wharton  v.  Mackenzie,  773. 

Peerage  case,  278,  392,  441. 
Whately  v.  Menheim  and  Levy,  331. 
Wheeler  v.  Alderson,  175. 

V.  Atkins,  432,  580. 
V.  Lowth,  392. 
V.  Senior,  137. 
Whitaker  v.  England  (Bank  of),  90. 
V.  Izod,  1 11. 
V.  Tatham,  713. 
Whitbread  v.  May,  693. 
White  V.  Beard,  315. 

V.  Parkins,  657,  717. 
V.  Sayer,  711. 
Whitehead  v.  Scott,  90,  561, 

V.  Wynn,  300. 
Whitelock  v.  Musgrove,  520. 
Whitfield  V.  Aland,  180,  235,  560. 

V.  Brand,  729,  731. 
Whitford  v.  Tutin,  499,  554. 
WHiittington  v.  Boxall,  819, 
Whitmore  v.  Wilks,  119. 
Whitnash  v.  George,  481. 
Whittiiker  v.  Mason,  708. 
Whittingham  v.  Bloxham,  609. 
Whittuck  V.  Waters,  300, 
Whitwell  V.  Scheer,  636. 
Whyte  V.  Rose,  400. 
Widdrington's  (Dr.)  case,  371. 
Wigglesworth  v.  Dallison,  711. 
Wihen  v.  Law,  254,  299. 
Wilder's  case,  689. 
Wiles  V.  Woodman,  659. 


xlviii 


TABLE    OF    CASES. 


"Wiles  V.  Woodward,  461. 
Wilkes  V.  Hopkins,  505,  572,  573. 
Wilkinson,  v.  Adam,  689. 
V.  Gordon,  362. 
V.  Johnson,  255. 
■    V.  Payne,  754,  804. 
Willans  v.  Taylor,  796. 
Williams  v.  Bagot  (Lord),  359,  403. 
V.  Bryant,  679. 
V.  Davies,  596,  607. 
u.East  India  Company,  593,  732, 

756,  757. 
V.  Greaves,  480. 
V.  Hulie,  199. 
V.  Jones,  664. 
V.  Morgan,  657,  692. 
V.  Mannings,  499,  539. 
V.  Sills,  639. 
V.  Smith,  774,  775. 
V.  Thomas,  586,  605. 
V.  Wilcox,  549. 
V.  Williams,  433,  736. 
V.  Woodward,  720. 
V.  Younghusband,      532,     534, 
535. 
Williamson  v.  Allison,  626. 
Willies  V.  Farley,  486. 
Willingham  v.  Matthews,  113,  114. 
AVillington  v.  Brown,  578. 
Willis  V.  Bernard,  90. 
Wilman  v.  Worrall,  517. 
Wilson  V.  Bowie,  561 
V.  Day,  784. 
V.  Hart,  665,  721. 
V.  Magiiay,  137. 
V.  Poulter,  719. 
V.  Rastall,  801. 
V.  Turner,  572. 
V.  Weller,  369. 
Wilton  V.  Webster,  759. 
Wimbush  v.  Talbois,  639. 
Wingfield  v.  Atkinson,  713. 
Winter  v.  Butt,  236,  250. 
Wise  V.  Wilson,  600. 
Wishow  V.  Barnes,  118. 
Withnell  v.  Gartham,  696,  698,  690. 
Wolff  w.  Oxholm,  355. 
Wollaston  v.  Hake  well,  145,  575. 
Wood  V.  Braddick,  443. 

V.  Cooper,  180,  181,  184. 

V.  Drury,  512. 

V.  Mackinson,  196. 


Wood  V.  Pringle,  598. 

V.  Rowcliffe,  127,  688,  692. 
V.  Strickland,  561. 
Woodbrldge  v.  Spooner,  660. 
Woodcock  V.  Houldsworth,  174. 
Woodgate  v.  Potts,  138,  603. 
Woodham  v.  Edwards,  737. 
Woodhouse  v.  Swift,  702. 
Woodhouselee  v.  Dalrymple,  689, 
Woodmas  v.  Mason,  457. 
Woodnoth  v.  Cobham,  (Lord),  477. 
Woodward  v.  Cotton,  276,  277. 
Woollam  V.  Hearn,  650. 
Woolway  v.  Rowe,  491. 
Wooton  V.  Barton,  598. 
Worlich  V.  Massey,  737. 
Worrall  v.  Jones  and  another,  128. 
Worsley  v.  Filisker,  798. 
Wright  V.  Beckett,  245,  249. 
Wright  V.  Colls,  460. 

V.  Court,  773. 

V.  Crookes,  672. 

V.  Doe   d.   Tatham,   53,   89,    145, 
341. 

V.  Lainson,  502,  759. 

V.  Littler,  215. 

V.  Pindar,  797. 

V.  Sharp,  793. 

V.  Shawcross,  774. 

V.  Tatham,    327,    408,    420,    451, 
468,  791,  800,  801. 

V.  Wilson,  607. 
Wright's  case,  174. 
Wrottesley  v.  Bendish,  442,  733. 
Wyatt  V.  Bateman,  412,  514,  515,  517. 

V.  Gore,  42,  192,  256. 
Wych  V.  Meal,  443. 
Wylie's  case,  622. 
Wymark's  case,  574,  737. 
Wynne  v.  Tyrrwhitt,  522,  523. 

Yard  v.  Ford,  757. 

Yardley  v.  Arnold,  115,  120. 

Yates  V.  Aston,  657. 

V.  Carnsew,  582. 
Yeates  v.  Pim,  708. 
Yeomans  v.  Legh,  124. 
Yewin's  case,  203,  211,  213. 
Young  V.  Brander,  311. 
V.  Wright,  572. 
Yrissarri  v.  Clement,  739. 


LAW  OF  EVIDENCE. 


INTRODUCTION. 

Every  system  of  municipal  law  consists  of  provisions,  which  either 
define  primary  rights'*  and  duties;  or  provide  means  for  preventing 
or  remedying  the  violation  of  them. 

If  all  were  both  able  and  willing  to  fulfil  the  former  provisions  of 
the  law,  the  latter  would  be  unnecessary.  But  without  provisions 
for  i^reventing  and  remedying  violations  of  the  mandatory  branches 
of  the  law,  by  imposing  actual  restraint  in  some  instances,  and  an- 
nexing penal  or  remedial  consequences  to  disobedience,  in  others, 
such  laws  would  be  of  no  greater,  frequently  *of  less  effect,  ^^c)-^ 
than  mere  moral  precepts.  It  is  of  the  very  essence  of  a  mu- 
nicipal law,  not  only  to  prescribe  a  rule  of  conduct,  but  to  compel 
obedience,  either  by  actual  restraint,  or  by  annexing  such  conse- 
quences to  disobedience  as  are  on  the  whole  the  most  convenient,  so 
that  any  addition  or  excess  would  be  productive  of  more  evil  than 
good. 

Such  provisions  are  either  'preventive  or  remedial. 

^  Right,  in  its  primitive  legal  sense,  is  that  which  the  law  directs :  in  popular 
acceptation,  that  which  is  so  directed  for  the  protection  or  advantage  of  an  indi- 
vidual, is  said  to  be  Ms  right. 

When  it  is  said  that^.  has  a  right  to  an  estate  or  to  damages,  it  is  meant,  that 
under  the  circumstances  the  law  directs  that  he  shall  have  the  estate  or  shall  have 
damages.  When  it  is  said  that  B.  has  a  right  of  action,  it  is  meant,  that  the  law 
under  the  circumstances  provides  means  for  enforcing  his  claim. 

When  the  learned  author  of  the  Commentaries,  in  the  language  of  the  civil  law, 
speaks  of  the  rights  of  things,  he  uses  the  term  in  its  primitive  sense,  and  treats 
of  those  legal  incidents  which  the  law  prescribes  as  to  things,  such  as  possession, 
enjoyment,  succession,  or  transfer. 
1 


2  LAW    OF    EVIDENCE. 

Preventive,  which  are  devised  for  the  actual  prevention  of  violations 
of  the  law  ; 

Remedial,  which  are  devised  for  the  purpose  of  repairing  the  con- 
sequences of  disobedience. 

Preventive  provisions,  again,  are  either  such  as  are  designed  to 
prevent  violations  of  the  law  by  interposing  actual,  forcible,  corpo- 
real restraint ;  as  where  one  is  prevented  by  force  from  doing  some 
special  injury  to  the  person  or  the  property  of  another,  or  is  re- 
strained from  doing  mischief  generally  by  imprisonment ;  or  they  are 
such  as  operate  on  the  mind  by  the  fear  o^ penal  consequences  annexed 
to  defined  transgressions. 

Remedial,  which  afford  a  remedy  or  reparation  in  respect  of 
some  violation  of  right,  consist  either  in  awarding  specific  restitu- 
tion, as  by  an  actual  restoration  of  goods  wrongfully  detained  from 
the  owner ;  or  in  giving  damages  co-extensive  with  the  particular 
injury. 

In  order  to  annex  either  remedial  or  penal  consequences  to  their 
proper  predicaments  in  fact,  it  is  essential  that  the  true  state  of  facts 
should  be  investigated  by  competent  means ;  that  the  legal  conse- 
quences appertaining  to  such  ascertained  facts,  as  previously  defined 
by  the  law,  should  be  declared  hj  judicial  authority  ;  and,  lastly,  that 
the  legal  consequences,  if  not  already  annexed,  should  be  actually 
annexed  by  an  executive  process. 

To  the  investigative  process,  again,  it  is  essential  that  the  parties 
should  mutually  state  what  each  deems  to  be  essential  to  his  claim 
|-^o-]  or  charge,  or  defence,  and  that  each  *should  be  allowed  to 
dispute  or  deny  the  statement  of  his  adversary.  By  this 
means,  if  any  facts  be  disputed,  they  are  distinguished  from  the  ad- 
mitted facts,  in  order  to  be  submitted  to  inquiry  before  the  proper 
tribunal. 

These  mutual  statements  are,  in  the  law  of  England,  styled  the 
pleadings. 

By  that  law,  it  is  in  the  first  place  incumbent  on  the  party  who 
makes  a  claim  or  charge,  to  state  facts  which,  if  true,  show  that  the 
charge  or  claim  is  founded  in  law :  the  defendant  is  then  required 
either  by  a  demurrer  to  admit  the  facts  and  deny  the  legal  conse- 
quence contended  for  by  the  plaintiff  or  prosecutor,  or  to  deny  the 
facts  so  alleged,  wholly  or  in  part,  or,  admitting  the  fact  so  alleged 
to  be  true,  to  state  others,  which,  taken  in  connection  with  the 
facts  already  stated,  show  that  the  claim  or  charge  is  unfounded  in 
law. 


INTRODUCTION.  6 

Again,  where  sucli  additional  facts  are  pleaded  in  defence,  it  is 
for  the  prosecutor  or  plaintiff,  in  his  turn,  either  to  deny  some 
material  fact  so  pleaded  in  defence,  or,  admitting  those  facts  to  be 
true,  either  to  demur,  so  as  to  raise  a  mere  question  of  law,  or  to 
allege  additional  facts ;  and  in  like  manner,  so  long  as  further  facts 
arc  pleaded  by  the  one  party,  the  other  may  either  deny  one  or  more 
of  such  facts,  or  demur,  or  allege  other  facts.  It  is  obvious  that  such 
a  series  of  mutual  allegations,  where  the  condition  is  that  each  which 
does  not  terminate  the  series  must  contain  the  averment  of  some  new 
and  material  fact,  must  rapidly  converge  to  an  issue  either  of  law  or 
fact.'' 

^  The  law,  however,  frequently  sanctions  a  generality  in  pleading,  which  leaves 
the  fact  which  is  to  be  tried  intermixed  with  most  important  legal  considerations. 
For  instance,  the  declaration  in  an  action  of  trover  alleges  in  i«ubstance  nothing 
more  than  the  conversion  by  the  defendant  of  the  phiintiff's  goods  ;  the  defendant 
by  his  plea  may  deny  that  they  were  his  goods  ;  and  this  issue  frequently  involves 
not  merely  one  or  more  simple  facts,  but  difficult  legal  considerations,  such  as 
questions  of  title,  the  law  of  bankruptcy,  the  right  of  stoppage  in  transitu,  and 
many  others.  It  is  obvious  tliat  such  an  intermixture  of  law  and  fact  could  not 
be  avoided  without  the  aid  of  minute  and  particular  pleadings,  in  the  coui'se  of 
which  the  real  merits  and  justice  of  the  case  would  frequently  be  embarrassed 
with  difficulties,  arising  from  a  necessary  adherence  to  technical  rules. 

It  is  interesting  to  observe  how  nearly  the  law  of  England  corresponds  with  the 
ancient  Roman  law  in  several  most  important  points  of  its  practical  administra- 
tion. In  the  first  place,  the  pleadings  in  the  practice  of  the  Roman  law  were 
transacted  before  the  praetor,  as  they  are  with  us  in  the  courts  above,  or,  as  it  is 
technically  called,  in  Banc.  The  plaintiff,  when  he  had  brought  his  adversary 
into  court,  and  had  not  agreed  with  him  upon  an  Imparlance,  then  formally 
{edebat  actionem)  declared  against  him  :  "  Quod  si  nee  vindices  dati,  nee  de  lite 
in  via  transactum  in  jus  veniri  solebat,  ubi  actor,  impetrata  loquendi  potestate, 
reo  edebat  actionem,  id  est,  indicabat  qua  demum  actione  adversus  reum  experiri 
vellet.  Quum  enim  de  uno  eodemque  facto  plures  s£epe  actiones  competerent, 
eligenda  erat  una,  eaque  edenda  reo." — Hein.  A.  R.  v.  2,  22G. 

It  must  be  allowed  that,  however  our  modern  system  of  pleading  may  excel  that 
of  the  Romans  in  other  respects,  the  latter  were  at  least  entitled  to  the  merit  of 
conciseness ;  take,  for  instance,  a  declaration  in  assumpsit  upon  a  special  agree- 
ment. A  Roman  declaration  in  such  a  case  ran  thus  :  "  Aio  te  mini  triticum  de 
quo  inter  nos  convenit  ob  polita  vestimenta  tua  dare  oportere."  It  is  amusing  to 
contrast  the  laconic  brevity  of  this  form  with  a  modern  declaration  upon  such  a 
transaction,  expanded  upon  the  record. 

After  the  declaration  followed  the  defendant's  plea  {exceptio),  and  upon  that 
the  plaintiff's  replication,  the  defendant's  rejoinder  {duplicatio) ,  &c.,  until  the 
matter  in  difference  was  reduced  to  a  single  question  of  law  or  fact.  If  the  whole 
resolved  itself  into  a  question  of  law,  then,  as  upon  demurrer,  it  was  decided  by 
the  prsetor ;  but  if  the  question  ultimately  depended  upon  a  disputed  fact,  then 
came  the  joining  of  issue,  the  "  contestatio  litis,"  by  which  the  litigants  put  them- 


LAW    OF    EVIDENCE. 


[*4] 
[*5] 


*Bj  the  law  of  England,  questions  or  issues  of  fact  thus 
agreed  upon  are  usually  tried  by  the  country,  that  is,  by  a 
*jury  of  twelve  men,  a  part  of  the  great  body  of  the  com- 
munity.° 


selves  to  the  proof  of  the  fact  by  witnesses  :  "  Festus  ait,  turn  demum  litigantes 
contestari  litem  dici,  cum  ordinato  judicio  utraquepars  diceret,  '  Testes  estote.'  " 
— Hein.  A.  R.  v.  2,  256.  The  issue  was  then  sent  to  be  tried  by  Indices,  who  in 
many  respects  bore  a  close  resemblance  to  an  English  jury.  "  Si  enim  de  jure 
disceptabatur,  ipse  praetor  qui  dicebat  extra  ordinem  si  de  facto  judex  dabatur, 
unde  formula  si  paret  condemna."  Conf.  Seneca  de  Benef.  III.  7.  The  judices 
were,  like  our  jurors,  private  persons,  selected  for  the  trial  of  matters  of  fact  upon 
the  particular  occasion.  Their  decision,  however,  was  final ;  and  instead  of  re- 
turning their  verdict  to  the  Court  above,  in  order  that  final  judgment  might  be 
pronounced,  the  jury  themselves  pronounced  the  sentence,  according  to  the  di- 
rection in  the  Formula,  "^i  paret  condemna. '''' 

The  principal  and  characteristic  circumstances  in  which  the  trial  by  a  Roman 
differed  from  that  of  a  modern  jury,  consisted  in  this,  that  in  the  former  case, 
neither  the  proetor,  nor  any  other  officer  distinct  from  the  jury,  presided  over  the 
trial,  to  determine  as  to  the  competency  of  witnesses,  the  admissibility  of  evi- 
dence, and  to  expound  the  law  as  connecting  the  facts  with  the  allegations  to  be 
proved  on  the  record ;  but  in  order  to  remedy  the  deficiency,  they  resorted  to 
this  expedient;  the  jury  generally  consisted  of  one  or  more  lawyers,  and  thus 
they  derived  the  knowledge  of  law  from  their  own  members  which  was  necessary 
to  enable  them  to  reject  inadmissible  evidence,  and  to  give  a  correct  verdict  as 
compounded  both  of  law  and  fact.  "  Denique  ut  tanto  minus  esset  periculi  ne 
imperite  judicarent  solebant  aliquando  iis  unus  aut  plures  judicii  socii  jurisperiti 
adjungi,  quorum  consilio  omnia  agerent."  Gell.  Noct.  Att.  XII.,  13  Conf.  Sigon. 
Hein.  A.  R.  lib.  4,  tit.  5,  s.  3.  Upon  the  trial,  the  plaintiff  proved  his  declaration 
or  replication,  or  the  defendant  his  plea  or  rejoinder  [duplicatio) ,  accordingly 
as  the  pleadings  threw  the  burthen  of  proving  the  affirmative  on  the  one  or  the 
other.  "  Ubi  ad  judicium  ventum,  actor  suam  actionem  et  replicationem,  reus 
exceptionem  et  duplicationem  probabat.  Nam  et  reus  escipiendo  actor  fiebat." 
— L.  1,  D.  de  Excep.  Hein.  A.  R.  v.  2,  291. 

"  Notwithstanding  the  difference  of  opinion  which  has  prevailed  among  legal 
antiquaries  as  to  the  origin  of  the  English  jury,  there  seems  to  be  great  reason  for 
supposing  that  it  is  derived  from  the.  p atria,  or  body  of  suitors  who  decided  causes 
in  the  county  courts  of  our  Saxon  ancestors.  That  the  ii-'iaX  per  jiiratum  patrice 
of  Glanville  was  derived  from  the  trial  per  patriam,  as  used  both  before  and 
after  the  Conquest,  is  rendered  highly  probable,  not  only  by  the  very  description 
of  the  trial  7>er  patriam,  yet  retained,  but  even  still  more  strongly  by  the  powers, 
qualifications  and  duties  incident  to  the  J  urata  patriai  of  Hen.  II.  and  lien.  III. 
This  iiypothcsis  seems  to  explain  many  sii\gular  incidents  to  the  early  trial  per 
juratam  patriw,  incidents  which  it  would  be  diflicult,  if  not  in)possil)le,  to  account 
for" in  any  other  manner.  The  jurata  jtatria;,  like  the  patria,  decided  on  their 
own  knoivledye:  for  this  purpose  they  were  selected  from  the  vicinage;  those  (in 
the  case  of  an  assize)  who  had  no  knowledge  of  the  facts  were  excluded  to  make 
room  for  such  others  as  were  supposed  to  know  them  ;  and  although  the  concur- 
rence of  twelve  was  essential  to  the  verdict,  yet  as  eleven  might  have  been  of  a 


INTRODUCTION.  6 

*This  justly    celebrated    institution    is    not    more    strongly 
recommended    by    its    intrinsic     excellence    as    a     mode    of    L     J 
*attainin2  to  the    truth,  than   by    considerations  of  extrinsic 
policy.  ■-     -^ 

contrary  opinion,  a  majority  in  effect  decided :  and  in  the  case  of  a  disputed 
deed,  the  witnesses  were  included  anionf;  the  jury,  and  their  duty  was,  as  it  is 
still,  in  the  language  of  our  records,  Dicere  veritatem.  Such  incidents  afford 
obvious  reasons  for  supposing  that  juries  were  but  selections  from  the  patria  or 
general  assembly,  who  must  have  acted  in  the  double  capacity  of  witnesses  and 
jurors. 

Although  i\\\s  jurata  i^atrice  differed  from  its  original,  the  ^;a^r/a,  both  in  re- 
spect of  number  and  of  the  obligation  of  an  oath,  these  wci'e  transitions  which 
might  not  only  easily  be  made,  but  which  were  likely  to  be  made,  and  which  we 
know  actually  were  made,  in  the  most  ancient,  perhaps,  of  all  our  courts,  that  is, 
the  county  court ;  where  though,  among  the  Saxons,  and  even  after  the  Conquest, 
the  verdict  was  given  by  the  whole  comitatus,  and  is  still  supposed  to  be  the  verdict 
of  the  suitors,  yet  it  is  in  fact  given  by  twelve  jurors  on  oath.  In  the  reign  of  lien. 
II.,  Glanville  speaks  of  the  trial  per  jicratum  pati-ice  as  a  known  and  established 
institution.  Whether  the  practice  of  occasionally  delegating  the  duty  of  decision 
to  a  select  portion  of  the  body  of  suitors,  and  that  sworn  was  coeval  with  the 
popular  tribunal  itself,  or  subsequently  introduced  for  the  trial  of  civil  rights,  as 
we  know  it  to  have  been  for  the  purpose  of  criminal  presentments  may  be  doubt- 
ful. It  is  probable,  however,  that  the  complete  and  final  establishment  of  the  jury 
system  is  attributable  to  many  concurrent  causes.  In  the  first  place,  it  is  clear  that 
an  appeal  from  the  patria  to  a  select  number  was  a  practice  of  great  antiquity  ;  of 
this  practice  there  is  a  very  curious  memorial  in  the  Monumenta  Danica,  lib.  1, 
p.  72:  "Erat  universa  ditio  in  certas  parascias  sive  curias  divisa,  has  statis  tem- 
poribus  locisque  per  se  quseque  seorsim  suis  cum  ai'mis,  patente  sub  Dio  in  cam- 
pis  conveaiebant,  aderantque  ejusdem  loci,  viri  nobiles  qui  velut  testes  judicia 
assiderent.  Ibi  in  medium  prodibant  qui  contra  alios  litem  se  habere  existima- 
bant,  auditisque  et  cognitis  partis  utriusque  actionibus  defensionibusque,  conven- 
tus  universus  in  concilium  ibat,  idque  temporis  spatium  quod  interim  deliberando 
terrebatur,  curam  vocabant.  Expensis  diligenter  et  velitatis  in  partem  utramque 
controversiis,  in  concessum  redibant,  vocatisque  litigatoribus,  de  jure  pronuncia- 
bant.  Si  quis  stare  judicio  non  vellet,  ad  duodecim  constitutes  sive  judices  5U'e 
arhitros  et  ab  his  ad  nniversas  conditionis  conventual  provocare  ei  licebat."  The 
expression,  "  sive  judices  sive  arbitros,"  is  singularly  coincident  with  the  doctrine 
in  Bracton,  f.  193,  that  the  jurata  was  not  liable  to  a  conviction,  as  the  assize 
was,  for  a  false  verdict,  because  the  parties  had  made  the  jurata  "  quasi  jndicem 
ex  consensu. ^^ 

In  the  next  place,  there  are  evident  traces  of  this  practice  in  our  own  country  : 
in  illustration  of  which,  the  celebrated  trial  in  the  county  court  before  Odo,  bishop 
of  Baieux,  in  the  time  of  William  the  Conqueror,  may  be  cited,  where  the  verdict 
by  the  patria  was  required  to  be  confirmed  by  the  oaths  of  twelve  selected  for 
the  purpose  from  the  body  of  suitors.  There  are  in  fact  many  other  vestiges  of 
the  (at  least)  occasional  practice  of  delegating  the  task  of  decision  to  a  select 
part ;  twelve  and  its  multiples  appears  to  have  been  a  favorite  number  for  this 
purpose,  not  only  among  the  Saxons,  but  other  nations  of  antiquity. 


8  LAW    OF    EVIDENCE. 

*  Secret    and    complicated    transactions,  such  as  are   usually 

r*8i  ...  .        .  . 

•-     -•    the  subject  of  legal  investigation,    are    too    various    in    their 

*circumstances  to  admit    of  decision    by  any   systematic   and 

•-  '  J    formal  rules;  the  only  sure  guide  to  truth,  whether  the  object 

Again,  that  the  modern  jury  are  the  same  with  the  jurata  patrice  of  Glanville 
and  Bracton,  their  name,  number,  and  general  duty,  which  to  this  day  is  dicere 
veritcdem,  sufficiently  prove,  although  it  is  clear  that  a  very  great  change  has 
taken  place  as  to  the  manner  of  exercising  their  important  functions.  Even  so 
lately  as  the  reign  of  Hen.  III.,  they  exercised  a  kind  of  a  mixed  duty,  partly  as 
witnesses,  partly  as  judges  of  the  effect  of  testimony ;  in  the  case  of  a  disputed 
deed,  the  witnesses  were  enrolled  amongst  the  jury,  and  the  trial  wa.s  per  pair  iam 
et  per  testes;  and  to  so  great  an  extent  was  their  character  then  of  a  testimonial 
nature,  that  it  was  doubted  whether  they  were  capable  of  deciding  in  the  case  of 
a  crime  secretly  committed,  and  where  the  j^atria  could  have  no  actual  knowledge 
of  the  fact.  (Bracton,  f.  173.)  It  was,  however,  at  this  period  that  the  capacity 
of  juries  to  exercise  a  far  wider  and  more  important  function,  in  judging  of  the 
weight  of  testimony  and  circumstantial  evidence,  began  to  be  appreciated,  for 
about  this  time  the  trial  by  ordeal  fell  into  disuse ;  and  when  this  superstitious 
invention,  the  ancient  refuge  of  ignorance,  had  been  rejected  as  repugnant  to  the 
more  enlightened  notions  of  the  age,  it  happily  became  a  matter  of  necessity  to 
substitute  a  rational  mode  of  inquiry  by  the  aid  of  reason  and  experience,  for 
such  inefficacious  and  unrighteous  practices.  From  this  aera  probably  may  be 
dated  the  commencement  of  the  important  changes  in  the  functions  of  the  jury, 
which  afterwards,  though  perhaps  slowly,  took  place,  until  they  were  modelled 
into  the  present  form. 

The  learned  author  of  the  Commentaries  is  inclined  to  derive  the  modern  jury 
immediately  from  the  Saxons,  referring  to  the  law  of  Ethelred,  which  provides 
that  twelve  men,  ceiate  superiores,  shall,  with  the  prcvpositus,  swear  that  they 
will  condemn  no  innocent,  absolve  no  guilty  person.  It  is  clear,  however,  that 
this  constitution  of  thirteen  men  was  merely  in  the  nature  o^  &  jurata  delatoria, 
or  jury  of  accusation,  not  of  trial,  for  the  effect  of  a  charge  by  the  thirteen  was 
merel}'  to  consign  the  accused  to  the  triplex  ordalium. — Others  have  asserted, 
that  the  origin  of  the  present  jury  was  the  assize  established  in  the  reign  of 
Henry  II.  It  appears,  however,  very  clearly  from  Glanville's  Treatise,  that  the 
jury  of  twelve  was  of  more  ancient  origin  ;  for  it  is  I'epeatedly  spoken  of  in  that 
work  as  a  known  and  existing  institution,  and  as  the  oi'dinary  means  of  inquiry 
in  the  case  of  purprestures,  nuisances,  and  trespasses  which  did  not  amount  to 
disseisins.  These  were  then  tried  per  jaratam  patrice  sive  vicineti  coram  justi- 
ciar lis.     Glan.  1.  9,  c.  11. 

M.  Meyer,  in  his  truly  valualjlc  and  interesting  work  [Institutions  Judiciares), 
is  disposed  to  fix  the  origin  of  our  juries  at  so  late  a  date  as  that  of  Henry  III. 
Inst.  Jud.  vol.  2,  p.  165.  But  it  is  remarkable,  that  one  reason  which  he  strongly 
urges  in  support  of  this  opinjon,  is  the  total  silence  of  Glanvilleon  this  subject: 
"  Dans  cet  ouvragc  il  ne  se  rencontre  ni  le  nom  dc  jury  ni  la  chose  memo,  quoiqu'il 
8oit  souvent  question  de  I'ussise,"  &c.  Inst.  Jud.  vol.  ii.  p.  109.  Glanville  himself 
aflords  the  most  decisive  refutation  of  this  argument.  Sec  1.  9,  c.  11  ;  1.  14,  c.  3  ; 
see  also  1.  2,  c.  0 ;  1.  5,  c.  4 ;  1.  7,  c.  IG  ;  and,  consequently,  the  hypothesis  of  an 
origin  later  tlian  the  time  when  Granville  wrote,  necessarily  falls  to  the  ground. 


INTRODUCTION.  9 

be  to  explore  the  mysteries  of  nature,  or  unravel  the  hidden  trans- 
actions of  mankind,  is  reason  aided  by  experience. 

It  is  obvious,  that  the  experience  which  would  best  enable  those 
whose  duty  it  is  to  decide  on  matters  of  fact,  arising  out  of  the  con- 
cerns and  dealings  of  society,  to  discharge  that  duty,  must  be  that 
which  results,  and  which  can  only  result,  from  an  intimate  inter- 
course with  society,  and  an  actual  knowledge  of  the  habits  and  deal- 
ings of  mankind :  and  that  the  reasoning  faculties  best  adapted  to 
apply  such  knoAvledge  and  experience  to  the  best  advantage  in  the 
investigation  of  a  doubtful  state  of  facts,  are  the  natural  powers  of 
strong  and  vigorous  minds,  unencumbered  and  unfettered  by  the 
technical  and  artificial  rules  by  which  permanent  tribunals  would  be 
apt  to  regulate  their  decisions. 

Nor  is  the  trial  by  jury  less  recommended  by  considerations  of  ex- 
trinsic policy.  It  constitutes  the  strongest  security  to  the  liberties 
of  the  people  that  human  sagacity  can  devise  ;  for  in  effect,  it  con- 
fides the  keeping  and  guardianship  of  their  liberties  to  those  whose 
interest  it  is  to  preserve  them  inviolate ;  and  any  temptation  to  mis- 
apply so  great  an  authority  for  unworthy  purposes,  which  might 
sway  a  permanent  tribunal,^  can  have  no  influence  *when 
entrusted  to  the  mass  of  the  people  to  be  exercised,  by  par-  ^  -■ 
ticular  individuals  but  occasionally. 

The  trial  by  jury,  though  undoubtedly  known  and  used  in  the  king's  courts  in 
the  reign  of  Henry  II.,  had  become  much  more  frequent  in  the  reign  of  Henry 
III.,  an  ajra  from  which  its  gradual  change  to  its  present  form  may  be  dated.  It 
is  not  improbable,  as  far  as  regards  the  county  court,  that  when  its  powers  had 
been  greatly  abridged,  the  substitution  of  twelve  jurors  for  the  whole  comitatus 
was  adopted  as  a  change  of  great  convenience  to  the  suitors  of  the  court,  as  well 
as  the  litigant  parties :  the  former  would  be  more  rarely  called  on  to  perform  a 
burthensome  duty,  the  latter  would  have  their  causes  more  patiently  tried. 

If  it  was  ever  the  practice,  either  previous  or  subsequent  to  the  Conquest,  that 
the  verdict  by  ih&  patria  or  comitatus  should  be  subject  to  an  appeal  to  or  con- 
firmation by  twelve  of  the^a?-e5  on  an  oath,  and  of  this  as  has  been  seen,  some 
traces  are  to  be  found,  the  transition  to  the  select  part  would  be  perfectly  easy ; 
it  would  in  efiFect  be  nothing  more  than  the  mere  omission  of  a  step  in  the  process 
which  had  become  useless  and  burthensome  ;  experience  having  shown  that  jus- 
tice was  better  done  by  a  limited  number,  acting  under  the  obligation  of  an  oath, 
than  by  the  precarious  determination  of  a  large  and  indefinite  body,  few  of  whom 
would  possess  any  knowledge  of  the  facts. 

^  The  power  of  deciding  on  matters  of  fact  is  much  more  capable  of  abuse,  and 
liable  to  corrupt  partiality,  without  appearing  to  be  manifestly  unjust,  than  the 
power  of  deciding  on  matters  of  law  is.  A  judgment  in  law  on  ascertained  facts 
must  be  justified  by  comparison  with  precedents  ;  and  it  attracts  public  notice, 
because  in  its  turn  it  becomes  a  precedent  for  future  decisions.     It  is  therefore 


10  LAW    OF    EVIDENCE. 

In  addition  to  this,  no  institution  could  be  better  devised  for  secur- 
ng,  on  the  part  of  the  people,  a  lively  attachment  to  the  constitution 
and  laws,  in  the  practical  administration  of  which  they  act  so  impor- 
tant a  part  in  diffusing  a  knowledge  of  the  laws  themselves,  and 
producing  ready  obedience  to  a  system  which  they  know  to  be  justly 
and  impartially  administered. 

For  the  finding  of  a  verdict  on  every  issue,  it  is  essential,  in  the 
first  place,  to  know  what  facts,  when  proved,  will  satisfy  the  issue  in 
point  of  law  ;  and,  secondly,  to  inquire  whether  such  facts  have  been 
proved.  The  office  of  the  jury  is  confined  altogether  to  the  latter 
question  ;  their  duty  is  to  ascertain  the  existence  of  facts  by  means 
of  the  judgment  which  they  form  of  the  credibility  of  witnesses,  and 
by  the  inferences  which  they  make  from  the  circumstances  submitted 
to  their  consideration.  For  the  due  discharge  of  this  important 
function,  they  are  supposed  to  be  peculiarly  well  qualified  by  their 
experience  of  the  conduct,  affairs,  and  dealings  of  mankind,  and  the 
manners  and  customs  of  society.  In  this  respect,  and  to  this  extent, 
the  law  confides  implicitly  in  their  knowledge,  experience,  and  discre- 
tion. It  interferes  no  further  than  by  laying  down  cautionary  rules 
to  prevent  the  jury  from  being  deceived  or  misled.  Having  done 
this,  the  rest  is  left  to  the  conscience  and  discretion  of  the  jury. 
^    And  the  Courts  *will  only  interfere  with  their  decision  where 

r*iii 

■-  -'  the  verdict  has  been  perverse  or  clearly  contrary  to  the  evi- 
dence. 

It  is  with  a  view  to  those  objects  that  the  rules  of  evidence  are 
almost  exclusively  framed.  But  in  the  next  place,  a  knowledge 
whether  particular  facts,  if  established  to  the  conviction  of  the  jury, 
will  satisfy  the  issue,  or  the  allegations  to  be  proved,  is  also  essential 
to  a  verdict ;  and  this  is  usually  a  question  of  law,  and  therefore 
within  the  province  of  the  Judge.  In  such  cases,  therefore,  it  is  for 
the  Court  to  instruct  the  jury  in  point  of  law,  to  inform  them  what 
facts  are  essential  to  the  proof  of  the  issue,  and  that  they  ought  to 
give  their  verdict  in  the  affirmative  or  negative,  according  to  the 
opinion  of  the  jury  that  the  particular  facts  are  proved  or  disproved. 

The  jury,  in  finding  a  gcneral'verdict,  are  bound  to  find  it  accord- 
ing to  the  just  application  of  the  law  as  they  receive  it  from  the 

the  subject  of  {lublic  attention,  and  any  material  iloparture  from  ordinary  princi- 
ples would  n(!C(!H.sarily  lie  remarked  ;  but  the  testimony  and  evidence  offered  in 
proof  of  facts  in  particular  instances,  are  capable  of  such  infinite  complexity  and 
variety,  that  they  admit  of  no  certain  standard  for  judging,  and  consequently  a 
corrupt  or  erroneous  decision  is  the  less  easy  to  be  detected. 


INTRODUCTION.  •  11 

Court,  and  their  own  judgment  wlietber  the  facts  are  proved  or  not ; 
and  every  such  verdict  is  presumed  to  be  founded  upon  the  law  so 
expounded,  and  the  facts  so  found. 

If  the  jury,  in  a  civil  proceeding,  misapply  the  law,  the  party 
injured  may  obtain  redress  by  moving  for  a  new  trial.  But  the  jury 
are  not  in  any  case,  whether  civil  or  criminal,  bound  to  apply  the 
law;  they  are  always  at  liberty  to  find  a  special  verdict,  that  is,  to 
state  specially  what  facts  they  find  to  be  proved  ;  and  the  remainder 
of  that  process  which  is  essential  to  the  verdict,  that  is,  the  applica- 
tion of  the  law  to  the  facts  so  found,  is  left  to  be  executed  by  the 
Court.  In  finding  a  special  verdict,  the  jury  discharge  the  whole  of 
their  office,  for  a  special  verdict  does  not  contain  merely  a  detail  of 
the  evidence  given  by  the  witnesses,  but  is  conclusive  as  to  the 
existence  of  all  the  ultimate  specific  facts  of  the  case,  which  are 
essential  to  its  determination,  founded  upon  an  examination  of  the 
credit  due  to  the  witnesses,  and  upon  presumptions  and  inferences 
derived  from  all  the  circumstances  of  the  case  as  detailed  in  evidence. 

*That   which  is  legally  offered  by  the  litigant  parties  to    r^-iQ-i 
induce  a  jury  to  decide  for  or  against  the  party  alleging  such 
facts,  as  contradistinguished  from  all  comment  and  argument  on  the 
subject,  fall  within  the  description  of  evideiice. 

Where  such  evidence  is  sufiicient  to  produce  a  conviction  of  the 
truth  of  the  fact  to  be  established,  it  amounts  to  proof. 

The  origin,  nature  and  quality  of  such  evidence,  the  principles  and 
rules  which  regulate  its  admissibility  and  effect,  and  its  application  to 
the  purposes  of  proof,  form  the  subject  of  the  present  Treatise. 

The  brief  outline  which  has  been  given  to  show  the  relation  which 
this  branch  of  the  law  bears  to  the  whole  system,  is  sufficient  to 
manifest  its  great  importance. 

There  is,  perhaps,  no  greater  blessing  incident  to  a  highly  im- 
proved state  of  civilization,  than  the  substitution  of  a  rational  and 
satisfactory  mode  of  judicial  proof,  for  the  rude,  barbarous,  and 
even  impious  practices  resorted  to  in  the  dark  and  unlettered  ages. 
Without  certain  modes  of  investigating  truth,  in  cases  where  its  light 
is  ever  liable  to  be  obscured  by  fraudulent  practices  exercised  for  the 
evasion  of  justice,  the  wisest  laws  are  but  vain  and  ineffectual:  they 
may  embelhsh  the  statute-book,  as  beautiful  in  theory,  but  in  other 
respects  they  are  a  dead  letter,  frequently  even  worse ;  for  where 
offenders  cannot  be  detected  and  punished,  the  laws  may  do  mischief 
in  holding  out  a  show  of  protection,  which  being  but  delusive,  tends 
to  induce  a  false  and  dangerous  sense  of  security :  what  is  still  worse. 


12  LAW    OF    EVIDENCE. 

whilst  the  criminal  escapes,  thej  may  stamp  the  innocent  with  in- 
famy, and  crush  them  with  judgments  designed  only  for  the  guilty  ; 
and  under  an  arbitrary  constitution,  may  be  converted  into  a  danger- 
ous instrument  in  the  hands  of  power,  for  the  destruction  of  those 
whose  possessions  are  tempting,  or  principles  obnoxious. 
r^-iq-i  Ii^  order  to  appreciate  the  advantages  which  result  from 
*modes  of  investigation  founded  on  just  and  rational  principles, 
we  have  only  to  recollect  the  absurd,  monstrous,  and  impious  prac- 
tices resorted  to  by  our  own  ancestors,  in  common  with  other  nations 
of  antiquity.  It  was  for  the  want  of  them  that  judicial  oaths  were 
multiplied  to  an  extent  of  itself  sufficient  to  bring  the  obligation  into 
contempt :  it  was  vainly  hoped  that  the  rank  and  number  of  compur- 
gators, who  swore  not  to  any  fact,  but  to  mere  belief,  would  com- 
pensate for  their  want  of  knowledge.  Hence  the  superstitious 
appeals  to  the  Deity  by  the  trial  by  ordeal,  and  the  ferocious  and 
impious  practice  of  the  trial  by  duel.  They  did  not  venture  to  rely 
on  the  simple  oaths  of  individual  witnesses  to  fiicts,  although  with  a 
flagrant  degree  of  inconsistency  they  gave  credit  to  the  cumulative 
oaths  of  those  who  knew  nothing  of  the  facts  :  whilst  they  were  either 
too  ignorant  or  too  indolent  to  try  the  credit  of  witnesses  by  diligent 
examination  and  comparison  of  testimony  and  facts,  judicial  oaths 
were  multiplied  to  an  absurd  and  profligate  extent.  Hence  also  the 
rude  limits  of  prescription,  which  were  established  for  the  purpose 
of  avoiding  the  necessity  for  inquiry.'^  It  may,  however,  be  recol- 
lected to  their  credit,  that  the  shocking  expedient  of  applying  torture 
to  extort  confession,  a  practice  sanctioned  by  many,  even  Christian 
legislators,  was  never  resorted  to  by  the  Anglo-Saxons. 

But  however  absurd,  objectionable  and  mischievous  such  practices 
must  appear  at  the  present  day,  the  progress  of  improvement  has 
been  slow ;  for  though  the  trial  by  duel  in  civil  suits  received  a  con- 
siderable check  in  the  reign  of  Henry  II.,  in  consequence  of  the 
introduction  of  the  trial  by  the  grand  assize,  yet  the  practice  was 
continued  in  appeals  till  long  afterwards,  and  has  but  lately  ceased 
to  be  the  law ;  and  though  the  trial  by  ordeal  seems  to  have  fiillen 
P^lj^-j  into  disuse  ever  since  the  early  part  of  the  reign  of  *Henry 
III.  without  any  formal  abolition,  the  doctrine  of  compurga- 
tion by  wager  of  law  is  but  recently  abolished.  It  was  not  until 
long  after  the  establishment  of  the  jury  trial  that  the  investigation 
was  conducted  by  the  open  examination  of  witnesses,  and  that  the 

"  If  a  man  wounded  his  slave,  he  was  not  to  be  pi'csumcd  to  be  guilty  of  the 
murder,  unless  the  slave  died  the  day  after. 


INTRODUCTION.  14 

functions  of  jurors  and  witnesses  were  distinguished  and  separated ; 
it  was  not  until  the  reign  of  Queen  Anne  that  witnesses  for  prisoners 
tried  for  felony  Avere  examined  upon  oath. 

It  is  not,  however,  part  of  the  present  design  to  enter  into  any 
historical  detail  of  the  law  on  this  interesting  subject,  further  than 
as  reference  to  the  ancient  law  may  be  occasionally  connected  with 
its  present  details. 

The  subject  may  be  conveniently  considered,  in  relation, 

First.  To  the  elementary  principles  on  which  the  legal  doctrine 

rests. 
Secondly.  To  the  instruments  of  evidence,  as  governed  by  these 

principles  and  elementary  rules. 
Thirdly.  To  their  application  to  the  purposes  of  proof,  either 
generally  or  particularly. 


PART  I. 

GENERAL  PRINCIPLES  OF  THE  LAW  OF  EVIDENCE. 


CHAPTER  I. 

NATURAL  PRINCIPLES  OF  EVIDENCE. 

FIRST,  then,  as  to  the  general  principles  on  which  the  law  of 
evidence  is  founded. 

The  means  which  the  law  employs  for  investigating  the  truth  of  a 
past  transaction  are  those  which  are  resorted  to  by  mankind  for 
similar,  but  extrajudicial  purposes.  These  are  the  best,  usually  the 
only  means  of  inquiry,  and  it  is  for  this  reason  that  a  jury  of  the 
country  forms  a  tribunal  so  well  qualified  to  judge  of  mere  matters 
of  fact ;  for,  subject  to  certain  exceptions,  they  decide  by  the  aid  of 
experience  and  reason,  as  they  would  do  on  any  extrajudicial  occa- 
sion. With  these  general  principles  the  law  can  interfere  in  two 
ways  only ;  either  by  excluding  or  restraining  mere  natural  evidence 
by  the  application  of  artificial  tests  of  truth,  or  annexing  an  artificial 
effect  to  evidence  beyond  that  Avhich  it  would  otherwise  possess. 
Hence  it  is  that  the  great  principles  of  evidence  may  be  reduced  to 
three  classes,  comprising, 

1st.  The  principles  of  evidence  Avhich  depend  on  ordinary  ex- 
perience and  natural  reason,  independently  of  any  artificial  rules  of 
law ; 

2dly.  The  artificial  principles  of  law,  which  operate  to  the  par- 
tial exclusion  of  natural  evidence  by  prescribing  tests  of  admissi- 
bility, and  which  may  properly  be  called  the  excluding  principles  of 
law  ; 

r*1P1        *3dly.   The  principles  of  law  which  either  create  artificial 
modes  of  evidence,  or  annex  an  artificial  effect  to  mere  natu- 
ral evidence. 


NATURAL  PRINCIPLES  OF  EVIDENCE.         16 

In  the  first  place,  it  rarely  happens  that  a  jury  or  other  tribunal,* 
whose  business  it  is  to  decide  on  a  matter  of  fact,  can  do  so  by  means 
of  their  own  actual  observation.  It  is  obvious  that  when  inquiry  is 
to  be  made  into  the  circumstances  of  a  past  transaction  before  a  jury, 
information  must  be  derived  for  the  most  part  from  the  same  source, 
and  must  be  judged  of  and  estimated,  to  a  great  extent  by  the  same 
rules  that  would  be  resorted  to  and  applied  by  any  individual  whose 
business  or  whose  interest  it  was,  in  the  ordinary  course  of  human 
events,  to  institute  such  an  inquiry. 

What,  then,  are  the  means  to  which  a  person  interested  in  such 
an  inquiry  into  a  past  transaction  would  naturally  resort  ?  He  would, 
in  the  first  place,  ascertain  what  witnesses  were  present  at  the  trans- 
action, and  would  obtain  all  the  information  which  they  could  sup- 
ply. If  none  were  present,  or  none  could  be  found  from  whom  he 
could  obtain  immediate  intelligence,  he  would  procure  information 
from  others,  who,  although  they  had  not  actual  personal  knowledge 
of  the  fact,  had  yet  derived  information  on  the  subject,  either  directly 
or  mediately  from  others  who  possessed  or  had  acquired  and  commu- 
nicated such  their  knowledge,  either  orally  or  in  writing. 

Again,  in  the  absence  of  other  information  on  the  subject,  he  would 
endeavor  carefully  to  ascertain  the  circumstances  which  accompanied 
the  transaction,  and  had  such  a  connection  with  it  as  enabled  him  to 
draw  his  own  conclusions  on  the  subject  of  inquiry. 

In  short,  where  knowledge  cannot  be  acquired  by  means  of  actual 
and  personal  observation,  there  are  but  two  *modes  by  which 
the  existence  of  a  by-gone  fact  can  be  ascertained.  •-        -' 

1st.  By  information  derived  either  immediately  or  mediately  from 
those  who  had  actual  knowledge  of  the  fact ;  or, 

2dly.  By  means  of  inferences  or  conclusions  drawn  from  other 
facts  connected  with  the  principal  fact  which  can  be  sufficiently  es- 
tablished. 

In  the  first  case,  the  inference  is  founded  on  a  principle  of  faith 
in  human  veracity  sanctioned  by  experience.  In  the  second,  the  con- 
clusion is  one  derived  by  the  aids  of  experience  and  reason  from 
the  connexion  between  the  facts  which  are  known  and  that  which  is 
unknown.     In  each  case  the  inference  is  made  by  virtue  of  previous 

^  To  a  limited  extent,  a  jury  or  Court,  in  deciding  matter  of  fact,  may  have 
actual  personal  knowledge.  Thus  a  jury  may  have  a  view  of  lands,  &c.,  the  sub- 
ject of  litigation  :  judges  may  decide  by  inspection  of  a  record,  or  of  the  person 
incases  of  disputed  infancy.  So  also  of  a  jury  of  matrons  in  cases  of  alleged 
pregnancy,  &c. 


17  LAW    OF    EVIDENCE. 

experience  of  the  connexion  between  the  known  and  the  disputed 
facts,  although  the  grounds  of  such  inference  in  the  two  cases  mate- 
rially differ. 

All  evidence  thus  derived,  w^hether  immediately  or  mediately  from 
such  as  have  had,  or  are  supposed  to  have  had,  actual  knowledge  of 
the  fact,  may  not  improperly  be  termed  direct  evidence  ;  Avhilst  that 
which  is  derived  merely  from  collateral  circumstances  may  be  termed 
indirect  or  inferential  evidence. 

It  is  obvious  that  the  means  of  indirect  proof  must  usually  be  sup- 
plied by  direct  proof;  for  no  inference  can  be  drawn  from  any  col- 
lateral facts  until  those  facts  have  themselves  been  first  satisfactorily 
established,  either  by  actual  observation,  or  information  derived 
from  others  who  have  derived  their  knowledge  from  such  observa- 
tion. 


[n8]  *CHAPTER   II. 

EXCLUDING  PRINCIPLES. 

Such,  then,  being  the  ordinary  source  of  evidence,  what  are  the 
excluding  principles  which  restrain  the  admission  of  evidence  ?  As 
juries  must  decide  by  the  aid  of  the  same  general  principles  of  belief 
on  which  any  individual  would  act  who  was  desirous  of  satisfying 
himself  by  inquiry  as  to  the  truth  of  any  particular  fact,  and  as  an 
individual  inquirer  would  not  think  it  necessary  to  limit  himself  by 
any  particular  rules,  why  should  the  evidence  to  be  submitted  to  a 
jury  be  limited  or  affected  by  any  technical  rules  ? 

The  answer  is,  that  the  law  interferes  for  two  purposes ;  first,  in 
order  to  provide  more  certain  tests  of  truth  than  can  be  provided, 
or  indeed  than  are  necessary,  in  the  ordinary  course  of  affairs,  and 
thereby  to  exclude  all  weaker  evidence  to  which  such  tests  are  in- 
applicable, and  which,  if  generally  admitted,  would  be  more  likely 
to  mislead  than  to  answer  the  purposes  of  truth ;  and  in  the  next 
place,  to  annex  an  artificial  effect  to  particular  evidence  which 
would  not  otherwise  belong  to  it,  on  grounds  of  general  policy  and 
convenience. 

The  great  principle  on  which  the  law  proceeds  in  laying  down 
rules  of  an  exclusive  operation  is,  not  to  alter  the  value  and  effect 
of  evidence  in  the  investigation  of  truth ;  that  would  be  absurd,  es- 


EXCLUDING    PRINCIPLES.  18 

pecially  where  the  tribunal  invested  with  the  power  of  decision  con- 
sists of  jurors  selected  from  the  great  body  of  the  people,  who,  being 
unskilled  in  technical  rules  and  unaccustomed  to  judicial  habits, 
must  necessarily  decide  by  the  aid  of  their  own  experience  of  things 
and  natural  power  of  their  reason,  by  principles  on  which  they  would 
act  in  the  affairs  of  ordinary  life ;  on  the  contrary,  one  great  object 
of  the  law  is  to  aid  *the  natural  powers  of  decision,  by  adding 
to  the  weight  and  cogency  of  the  evidence  on  which  a  jury  is  ^  -■ 
to  act.  Another  great  object  is  to  prevent  the  reception  of  evidence 
which  in  its  general  operation  would  injure  the  cause  of  truth,  by  its 
tendency  to  distract  the  attention  of  a  jury,  or  even  to  mislead 
them. ''I 

The  necessity  for  resorting  to  superior  tests  of  truth,  the  effect 
of  which  is  to  exclude  evidence  not  warranted  by  those  tests,  is 
founded  on  the   apprehension   that  the   evidence  on  which  an  indi- 

"  As  a  consequence  of  these  objects,  the  application  of  these  excluding  prin- 
ciples is  entirely  for  the  judge,  who  ought  to  decide  on  any  question  of  fact 
which  their  application  may  involve.  If  the  proof  is  by  witnesses,  he  must  weigh 
their  credibility,  and  if  counter  evidence  be  offered,  he  must  receive  and  decide 
upon  it ;  and  he  has  no  right  to  ask  the  opinion  of  the  jury  upon  any  such  ques- 
tion, it  being  one  purely  preliminary  to  the  reception  of  the  evidence,  even 
though  ultimately  the  same  fact  is  to  be  submitted  to  the  jury  for  their  opinion; 
Doe  clem.  Jenkins  v.  Davies,  10  Q.  B.  314. 

^  Thus  it  has  been  decided  in  many  cases  that  the  competency  of  a  witness, 
though  it  may  depend  upon  a  question  of  fact,  is  the  province  of  the  court 
exclusively;  Cook  v.  Mix,  11  Conn.  432 ;  Amory  v.  Felloios,  5  Mass.  219 ;  Tucker 
v.  Welsh,  17  Ibid.  IGO;  Reynolds  v.  Lounsbury,  6  11111534.  When  an  objection 
is  made,  at  a  trial,  to  a  witness  on  the  ground  of  interest,  the  decision  of  the 
judge  on  the  question  of  the  fact  is  conclusive  ;  Dole  v.  Thurlow,  12  Met.  157. 
So,  if  made  before  a  referee,  his  decision  is  not  the  subject  of  revision ;  Leach 
V.  Kelsey,  7  Barb.  S.  C.  Rep.  466. 

In  Hart  v.  Ileilner,  3  Rawle  410,  a  diiferent  principle  was  declared.  It  was 
there  said  that  if  a  person  be  called  as  a  witness,  and  objected  to  by  the  adverse 
party  on  the  score  of  interest,  the  party  making  the  objection  must  show  the 
existence  of  the  interest,  and  if  it  should  clearly  appear  to  be  so  from  the  testi- 
mony adduced  for  the  purpose  of  proving  it,  the  court  will  decide  upon  it  and 
reject  the  witness  ;  but  if  it  be  in  the  least  degree  doubtful,  the  court  will  not 
decide  the  question  of  interest  in  the  witness,  but  receive  his  testimony,  and 
leave  it  to  the  jury  to  determine,  and  if  they  should  be  of  opinion  that  he  has 
such  an  interest,  then  instruct  them  to  pay  no  i-egard  whatever  to  his  testimony, 
and  leave  it  altogether  out  of  view.  According  to  this  case,  it  would  be  discre- 
tionary with  the  court  either  to  decide  the  question  of  fact  directly,  or  to  sub- 
mit it  to  the  jury.  But  in  Chouteau  v.  Searcy,  8  Mo.  733,  it  was  expressly  held 
to  be  error,  after  admitting  the  testimony  of  a  witness,  to  instruct  the  jury  to 
disregard  such  testimony  if  they  should  find  that  the  witness  was  interested. 


19  LAW    OF    EVIDENCE. 

vidual  in  the  ordinary  transactions  of  life  might  safely  rely,  could 
not,  without  the  additional  sanction  of  such  tests,  he  safely  relied 
upon,  or  even  admitted,  in  judicial  investigations.  For,  in  the  first 
place,  in  the  ordinary  business  of  life  neither  so  many  temptations 
occur,  nor  are  so  many  opportunities  aflForded  for  practising  deceit, 
as  in  the  course  of  judicial  investigations,  where  property,  repu- 
tation, liberty,  even  life  itself,  are  so  frequently  at  stake :  in  the 
common  business  of  life  each  individual  uses  his  own  discretion 
with  whom  he  shall  deal  and  to  whom  he  shall  trust ;  he  has  not 
only  the  sanction  of  general  reputation  and  character  for  the  confi- 
dence which  he  reposes,  but  slight  circumstances,  and  even  vague 
reports,  are  sufficient  to  awaken  his  suspicion  and  distrust,  and 
place  him  on  his  guard  ;  and  where  doubt  has  been  excited,  he  may 
suspend  his  judgment  till  by  extended  and  repeated  inquiries  doubt 
is  removed.  In  judicial  inquiries  it  is  far  otherwise;  the  character 
of  a  witness  cannot  easily  be  subjected  to  minute  investigation ; 
*the  nature  of  the  proceeding  usually  excludes  the  benefit 
L  "  -I  which  might  result  from  an  extended  and  protracted  inquiry, 
and  a  jury  are  under  the  necessity  of  forming  their  conclusions  on 
a  very  limited  and  imperfect  knowledge  of  the  real  characters  of  the 
witnesses  on  whose  testimony  they  are  called  on  to  decide. 

It  has  been  truly  obseryed,  that  there  is  a  general  tendency  among 
mankind  to  speak  the  truth,  for  it  is  easier  to  state  the  truth  than  to 
invent ;  the  former  requires  simply  an  exertion  of  the  memory,  whilst 
to  give  to  false  assertions  the  semblance  of  truth  is  a  work  of  diffi- 
culty. It  is  equally  apparent  that  the  suspicion  of  mankind  would 
usually  depend  on  their  ordinary  experience  of  human  veracity  ;  if 
truth  were  always  spoken,  no  one  would  ever  suspect  another  of  fal- 
sity, but  if  he  were  frequently  deceived  he  would  frequently  suspect. 
Hence  it  is  that  jurors,  sitting  in  judgment,  would  usually  be  inclined 
to  repose  a  higher  degree  of  confidence  in  ordinary  testimony  than 
would  justly  be  due  to  it  in  the  absence  of  peculiar  guards  against 
deceit:  for  as  the  temptations  to  deceive  by  false  evidence  injudicial 
inquiries  are  far  greater  than  those  which  occur  in  the  course  of  the 
ordinary  transactions  of  life,  they  would  be  apt  to  place  the  same 
reliance  on  the  testimony  offered  to  them  as  jurors,  to  which  they 
wouhl  have  trusted  in  ordinary  cases,  and  would  consequently,  in 
many  instances,  overvalue  such  evidence. 

The  law  therefore  wisely  requires  that  the  evidence  should  be  of 
the  purest  and  most  satisfactory  kind  Avhich  the  circumstances  admit 
of,  and  that  it  should  be  warranted  by  the  most  weighty  and  solemn 


EXCLUDING     PRINCIPLES.  20 

sanctions.  This  indeed  is  but  a  consequence  of  one  great  and  im- 
portant rule  of  law,  viz.,  that  tlie  best  evidence  shall  be  adduced ; 
the  effect  of  which  is,  as  will  afterwards  be  seen,  to  exclude  inferior 
evidence,  whenever  it  is  offered  in  place  of  that  Avhich  is  of  a  superior 
degree  and  more  convincing  nature. 

Again,  for  the  purposes  of  saving  both  time  and  expense, 
*and  to  prevent  the  minds  of  jurors  from  being  distracted  r^n^-i 
from  that  which  is  material,  it  is  indispensably  necessary  to 
place  bounds  to  collateral  evidence,  and  to  exclude  such  as  is  of  too 
weak  and  suspicious  a  nature  to  deserve  credit,  and  which  though  it 
possessed  no  tendency  to  mislead,  would  still  be  mischievous  in  occa- 
sioning delay  and  expense,  and  attracting  fruitless  attention. 

In  order  to  exhibit  clearly  the  nature  and  extent  of  the  excluding 
tests  recognised  by  the  law  of  England,  it  is  essential  first  to  con- 
sider the  different  classes  of  evidence  to  which  such  tests  apply  ;  and 
then  to  consider  what  tests  are  applicable  to  each  of  such  classes. 

For  this  purpose  all  evidence  may  be  divided  into  two  classes  : 
1st.  Direct,  which  consists  in  the  testimony,  whether  immediately  or 
mediately,  derived  from  those  who  had  actual  knowledge  of  the  prin- 
cipal or  disputed  fact;  or  2dly,  indirect  or  inferential  evidence, 
where  an  inference  is  made  as  to  the  truth  of  the  disputed  fact,  not 
by  means  of  the  actual  knowledge  which  any  witness  had  of  the  fact, 
but  from  collateral  facts  ascertained  by  competent  means. 

Direct  or  testimonial  evidence,  again,  is  either  immediate,  that  is, 
where  a  witness  states  his  own  actual  knowledge  of  the  fact,  or 
mediate,  where  the  information  is  communicated,  not  immediately  by 
the  party  who  had  actual  knowledge  of  the  fact,  but  from  him 
through  the  intermediate  testimony  of  one  or  more  other  witnesses. 

First,  then,  what  are  the  principles  which  govern  the  reception  of 
immediate  testimony  ? 

To  render  the  communication  of  facts  perfect,  the  witness  must  be 
both  able  and  tvilling  to  speak  or  to  write  the  truth.  It  is  necessary 
that  he  should  have  had,  in  the  first  place,  the  means  and  opportunity 
of  acquiring  the  knowledge  of  the  facts ;  and,  in  the  second,  that  he 
should  possess  the  power  and  Inclination  to  transmit  them  faithfully  ; 
consequently  the  first  great  object  of  the  law  is  to  secure,  by  proper 
means,  the  inclination  of  the  witness  to  *declare  the  truth,  r^i)C)-\ 
and  to  ascertain  his  ability  to  do  so  by  adequate  tests ;  and  it 
is  for  the  jury  afterwards  to  judge  of  the  credit  due  to  the  witnesses, 
considering  their  numbers,  their  opportunities  for  observing  the  facts, 
the  attention   which   they  paid,  their  faculties  for  recollecting  and 


22  EXCLUDING     PRINCIPLES. 

transmitting  tbera,  tlieir  motives,  their  situation  with  respect  to  the 
parties,  their  demeanor,  and  their  consistency. 

In  order  to  exclude  impure  or  suspicious  testimony,  and  to  add  the 
most  solemn  and  binding  sanction  to  that  which  is  admitted,  the  law, 
in  the  first  place,  excludes  all  testimony  which  is  not  given  under  the 
sanction  of  an  oath  or  its  equivalent:  and  in  the  next  place,  subjects 
the  witness  to  cross-examination  by  the  party  against  whom  the 
evidence  is  offered. 

A  consequence  of  the  first  of  these  tests  until  recently  was,  that 
the  testimony  of  a  person  who  by  the  turpitude  of  his  conduct  had 
made  it  probable  that  he  would  not  regard  the  obligation  of  an  oath 
was  not  received,  and  therefore  no  individual  who  had  been  convicted 
of  any  infamous  crime  was  competent  to  give  evidence  in  a  court  of 
justice.  The  legislature  has,  however,  thought  it  wiser  to  admit  the 
evidence  of  such  a  person,  and  to  leave  it  to  the  discrimination  of  the 
jury  to  attach  a  proper  weight  to  it,  and  a  recent  statute*"  has 
enacted  that  no  person  offered  as  a  witness  shall  be  excluded  from 
giving  evidence  by  reason  of  incapacity  from  crime. ^ 

^  6  &  7  Vict.  c.  85. 

^  The  rule  which  excludes  a  witness  on  the  score  of  infamy  still  subsists  in 
most  if  not  all  the  United  States.  The  conviction  of  an  infamous  crime  in 
another  State,  or  in  a  foreign  country,  does  not,  however,  render  one  incompe- 
tent to  testify  as  a  witness,  though  it  has  been  held  that  the  record  is  admissi- 
ble to  affect  his  credibility  :  Coimn'th  v.  Green^  17  Mass.  515  ;  Cormri'thY.  Knapp, 
9  Pick.  490  ;  Chase  v.  Blodgett,  10  N.  H.22;  Uhl  v.  The  Comm'th,  6  Gratt.  706  ; 
contra,  The  State  v.  Candler,  3  Hawks  393.  It  is  the  nature  of  the  crime,  not 
the  punishment,  which  determines.  Infamous  crimes  are  treason,  felony,  and 
every  species  of  the  crimen  falsi,  such  as  forgery,  perjury,  subornation  of 
perjury,  and  offences  affecting  the  public  administration  of  justice  :  Schuylkill 
V.  Copeley,  17  P.  F.  Smith  3SG  ;  People  v.  Whipple,  9  Cow.  707.  Fine,  im- 
prisonment, or  transportation  for  an  offence  not  infamous,  does  not  render  a 
witness  incompetent :  U.  States  v.  Bockius,  3  AVash.  C.  C.  99 ;  Clarke  v.  Hall, 
2  liar,  ife  McII.  375.  An  attempt  to  procure  the  absence  of  a  witness  for  a 
criminal  prosecution  is  not,  it  seems,  an  "  infiimous"  offence:  State  v.  Keyes,  8 
Vt.  57.  So,  a  conviction  under  an  act  against  cutting  timber :  Koller  v.  Firth,  2 
Penn.  723.  So  of  keeping  a  bawdy  house :  Beer  v.  The  State,  14  Mo.  348.  A 
person  convicted  of  the  offence  of  receiving  stolen  goods,  knowing  them  to  have 
Ijeen  stolen,  is  not  a  competent  witness  :  Comm^th  v.  liixjers,  7  Met.  500  ;  but  see 
contra,  Commth  v.  Murp}nj,  3  Clarke  290.  Conviction  for  adultery  does  not 
render  a  person  incompetent:  Little  v.  Gibson,  39  N.  II.  505.  Nor  does  con- 
viction of  a  conspiracy  to  cheat  and  defraud  creditors :  Bickel  v.  Fasig,  9  Cas. 
463.  Where  the  statute  annexes  the  disability  to  the  conviction,  a  pardon  does 
not  remove  it:  Foreman  v.  Baldwin,  24  111.  298:  otherwise  pardon  ij^so  facto 
restores  competency:    Yarhorouyh  v.  State,  41   Ala.  405.     A  conviction,  how- 


INTEREST.  22 

Another  consequence  of  these  tests  was  tliat  the  law  would  not  re- 
ceive the  evidence  of  any  person,  even  under  the  sanction  of  an  oath, 
who  had  an  interest  in  giving  the  proposed  evidence,  and  whose 
interest  therefore  conflicted  with  his  duty.  ,^^^ 

This  rule  of  exclusion,  considered  in  its  principle,  was  founded  on 
tlie  known  infirmities  of  human  nature,  which  was  deemed  too  weak 
to  be  generally  restrained  by  *religious  or  moral  obligations,  r;,:.;q-| 
when  tempted  and  solicited  in  a  contrary  direction  by  tempo- 
ral interests.  Though  there  were,  no  doubt,  many  whom  no  inter- 
ested motive  could  seduce  from  a  sense  of  duty,  and  by  their  exclu- 
sion this  rule  operated,  in  particular  cases,  to  shut  out  the  truth  ;  yet 
as  the  law  must  prescribe  general  rules,  and  it  was  thought  probable 
that  more  mischief  would  result  from  the  general  reception  of  inter- 
ested witnesses  than  was  occasioned  b}''  their  general  exclusion,  the 
evidence  of  interested  persons  was  inadmissible.  -f- 

Tlie  necessity  for  defining  and  limiting  the  extent  of  the  operation 
of  this  principle  was  an  immediate  consequence  of  its  adoption,  for 
the  sake  of  certainty  in  its  application,  and  also  to  prevent  it  opera- 
ting too  largely  to  the  exclusion  of  evidence,  which  would  have  been 
productive  of  great  inconvenience.  Hence  the  law  defined  the  kind 
of  interest  which  should  exclude,  and  limited  it  to  a  legal  interest  in 
the   event,  as  contradistinguished  from  affection,  prejudice  or  bias.^ 

ever,  of  an  infamous  crime  is  not  enough.  There  must  be  judgment  on  the 
verdict,  and  the  judgment  must  be  proved  :  People  v.  Whipple,  9  Cow.  707  ;  V. 
States  V.  Dickinson,  2  McLean  325 ;  Skinner  v.  Perot,  1  Ashm.  57  ;  State  v. 
Valentine,  7  Ired.  225.  It  can  only  be  proved  by  the  record  :  Rathbun  v.  Eoss, 
46  Barb.  127;  Pick  v.  York,  47  Ibid.  131 ;  People  v.  Reinhart,  39  Cal.  449  ;  Same 
v.  Maloane,  Ibid.  G14:  Same  v.  McDonald,  Ibid.  697.  The  admission  of  a 
witness  that  on  a  former  examination  he  committed  perjury  goes  to  his  credit 
not  his  competency  5  Brown  v.  State,  18  Ohio  St.  496.  The  record  of  conviction 
is  admissible  as  affecting  the  credit  of  a  witness,  although  he  has  been  pardoned  : 
Curtis  V.  Cochran,  50  N.  11.  242.  See  post,  p.  118,  note  1.  When  a  witness 
for  the  Commonwealth,  on  a  criminal  trial,  testifies  in  answer  to  questions  by 
the  prisoner's  counsel,  that  he  had  been  pardoned  out  of  the  penitentiary,  where 
he  had  been  imprisoned  on  conviction  of  burglary,  the  pardon  is  sufiiciently 
proved  to  justify  the  admission  of  the  witness:  Howser  v.  CommHh,  1  P.  F. 
Smith,  332. 

^  The  general  rule  is,  that  if  the  witness  cannot  gain  or  lose  by  the  event  of  a 
suit,  or  if  a  verdict  cannot  be  given  in  evidence  for  or  against  him  in  another 
action,  the  objection  goes  to  his  credit,  and  not  to  his  competency  :  Van  Kuys  v. 
Turhune,  3  Johns.  Cas.  82.  It  must  be  some  certain  legal  and  immediate  in- 
terest in  the  event  of  the  suit :  Harbin  v.  Roberts,  33  Ga.  45  ;  Fountain  v.  Ander- 
son, Id.  372.  The  true  test  is  whether  the  witness  will  gain  or  lose  by  the 
direct  effect  of  the  judgment,  or  whether  the  record  will  be  evidence  for  or 


23  EXCLUDING     PRINCIPLES. 

Here  the  law  drew  the  line  of  distinction,  which  must  be  drawn  some- 
where, and  which  would  have  excluded  too  much  of  the  means  of  dis- 
covering the  truth,  had  it  incapacitated  every  witness  who,  from 
kindred,  friendship,  or  any  other  strong  motive  by  which  human 
nature  is  usually  influenced,  might  have  been  suspected  of  partiality. 
Hence,  although  a  man  and  his  wife  could  not  give  evidence  for  each 
other,"  (for  their  interests  are  in  law  identical,)  yet  no  other  degree  of 
relationship  or  connection  in  society,  whether  natural  or  artificial,  in- 
capacitated the  parties  from  giving  evidence  for  each  other.  A  father 
was  a  competent  witness  for  his  son,''  and  a  son  for  his  father ;  the 
guardian  and  his  *ward,  the  master  and  his  servant,  might 
'-''-'    mutually  give  evidence  for  each  other.® 

What  constituted  such  a  legal  interest  may  be  stated  generally  to 
have  been  either  a  direct  mid  certain  interest  in  the  event  of  the 
cause,  or  an  interest  in  the  record  for  the  purpose  of  evidence,  how- 
ever minute  that  interest  may  have  been.     It  is  obvious  that  a  rule 

"  Nor  against  each  other,  as  will  be  seen,  on  grounds  of  policy. 

^  The  application  of  the  principle  by  the  civil  law  was  much  more  strict,  and 
mutually  excluded  father  and  son,  patron  and  client,  guardian  and  ward,  from 
giving  evidence  for  each  other  ;  a  servant  or  other  dependent  was  also  incompe- 
tent to  give  evidence  for  his  master,  and  the  testimony  of  a  frieid  or  enemy 
was  regarded  with  great  jealousy.     Pand.  lib.  22,  tit.  5,  s.  140. 

®  For  the  application  of  this  rule,  see  tit.  Interest. 

against  him ;  Tuttle  v.  Turner^  28  Tex.  759.  An  interest  in  the  question  only 
does  not  disqualify  a  witness,  but  the  objection  goes  to  his  credit  only ;  Id. ; 
Evans  v.  Eaton,  7  Wheat.  356;  Spurr  v.  Pearson,  1  Mason  104;  Willing  v. 
Consequa,  1  Peters  C.  C.  Rep.  301  ;  Drake  v.  Maxwell,  5  Hals.  297  ;  Wakely  v. 
Hart,  6  Binn.  319  ;  Cornegg  v.  Abraham,  1  Yeates  34  ;  Hayes  v.  Grier,  4  Binn. 
S3.  Where  A.,  B.  and  others  entered  into  a  contract  with  X.,  and  A.  after- 
wards brought  an  action  against  X.  for  a  violation  of  his  rights  under  that  con- 
tract, it  was  held  that  B.  was  a  competent  witness  for  A.,  being  only  interested 
jn  the  question :  Wadhams  v.  The  Lichfield  and  Canaan  Turnpike  Co.,  10  Conn. 
R.  41G.  G. 

It  is  the  interest  of  the  party  in  the  subject-matter,  as  to  which  one  is  exam- 
•  ned,  and  not  the  effect  his  evidence  may  have  in  the  final  determination  of  the 
issue  that  renders  him  incompetent;  Emersonv.  Atwood,  7  Mich.  12.  A  remote, 
uncertain  or  contingent  interest  does  not  render  a  witness  incompetent,  but  only 
affects  his  credibility  :  Millett  v.  Parker,  22  Tex.  060 ;  Cutter  v.  Fanning,  2 
Clarke,  580  ;  Scull  v.  Mason,  7  Wright,  99.  The  party  oljjectiug  to  a  witness  on 
the  grounds  of  interest  must  show  satisfactorily  that  it  is  immediate  in  the  event 
of  the  cause  itself:  Richardson  v.  Dingle,  11  llich.  (Law)  405;  Richardson  \. 
Hoge,  24  Ga.  203.  A  party  to  the  record,  who  has  no  interest  in  the  result  of 
the  suit,  is  a  competent  witness  :  Jackson  v.  Barron,  37  N.  II.  494;  Rijers  v. 
Trustees,  9  Cas.  114;  Foster  v.  Leeper,  29  Ga.  294;  Draper  v.  Vanhorn,  12 
Ind.  352. 


INTEREST.  24 

SO  wide  and  extensive  in  its  terms  must  have  given  rise  to  constant 
questions  and  doubt,  and  as  a  general  principle  in  the  practical  ap- 
plication of  it,  as  on  the  one  hand  the  rejection  was  peremptory  and 
absolute,  but  on  the  other  if  the  Avitness  was  received,  it  was  still  for 
the  jury  to  consider  what  credit  was  due  to  his  testimony,  taking  into 
consideration  all  the  circumstances  of  the  case,  and  the  motives  by 
which  he  may  have  been  influenced,  it  was  thought  safer  to  admit  the 
evidence  where  there  was  a  doubt  than  to  exclude  it  altogether. 
Hence  it  was  the  inclination  of  the  courts  that  objections  of  this 
nature  should  go  to  the  credit  of  the  witness  rather  than  his  compe- 
tency. In  order  to  meet  the  objection,  various  expedients,  by  means 
of  releases,  &c.,  were  generally  resorted  to,  and  the  practical  incon- 
venience of  so  extensive  an  exclusion  being  found  intolerable,  the 
legislature  interposed  and  put  an  end  to  the  latter  branch  of  the  rule 
by  providing^  that  if  any  witness  should  be  objected  to  on  the  ground 
that  the  verdict  or  judgment  would  be  admissible  in  evidence  for  or 
against  him,  he  should  nevertheless  be  examined,  but  a  verdict  or 
judgment  in  the  action  in  favor  of  the  party  in  whose  behalf  he 
should  have  been  examined  should  not  be  admissible  for  him,  nor 
should  a  verdict  or  judgment  against  such  a  party  be  admissible  in  evi- 
dence against  him.  The  effect  of  this  measure  having  *been  ^-fC)T-^ 
found  beneficial,  upon  the  suggestion  of  Lord  Benman  the 
legislature  again  interfered,^  and  limited  the  operation  of  the  former 
branch  of  the  rule  by  enacting  that,  except  in  certain  instances  which 
presently  will  be  mentioned,  no  person  offered  as  a  witness  should  be 
excluded  by  reason  of  interest  from  giving  evidence,  but  that  every 
person  so  offered  should  be  admitted  to  give  evidence  on  oath  or  affir- 
mation, notwithstanding  that  such  person  might  have  an  interest  in 
the  matter  in  question  or  in  the  event  of  the  trial,  suit  or  proceed- 
ings in  which  he  should  be  off'ered  as  a  witness. 

The  interest,  however,  of  a  person  who  was  either  actually  or 
substantially  a  party  to  the  suit  was  still  thought  to  present  a  suffi- 
cient objection  to  the  admission  of  his  evidence.  By  way  of  quali- 
fication or  proviso,  therefore,  upon  the  former  general  enactment, 
it  was  declared  that  the  act  should  not  render  competent  any  party 
to  the  suit,  action,  or  proceeding  individually  named  in  the  record, — 

^  3  &  4  Will.  IV.  c.  42,  s.  26.  The  statute  likewise  provided  (s.  27),  in  order 
to  facilitate  proof  of  the  facts  (see  Rees  v.  Walters^  2  M.  &  W.  529),  that  the 
name  of  the  witness  and  of  the  party  on  whose  behalf  he  was  examined  should 
be  indorsed  on  the  record. 

s  6  &  7  Vict.  c.  85. 


25  EXCLUDING     PRINCIPLES. 

or  any  lessor  of  the  plaintiff,  or  tenant  of  the  premises  sought  to 
be  recovered  in  ejectment, — or  the  landlord  or  other  person  in  whose 
right  any  defendant  in  replevin  made  cognisance, — or  any  person  in 
whose  immediate  and  individual  behalf  any  action  was  brought  or  de- 
fended either  wholly  or  in  part, — or  the  husband  or  wife  of  such 
persons  respectively. 

With  respect  to  the  rule  of  evidence  thus  established,  it  was 
objected  that  the  law  excluded  witnesses  falling  within  any  of  these 
predicaments,  though  their  interest  in  many  cases  was  of  the  smallest 
pecuniary  amount,  yet,  in  others,  admitted  the  testimony  of  persons 
who  lay  under  the  influence  of  the  strongest  ties  of  affection  or  large 
pecuniary  interests  in  the  result,  and  hence  had  a  far  greater  tempta- 
tion to  deceive.  In  answer,  it  was  said  that  this  observation,  though 
true,  afforded  no  fair  ground  of  objection.  The  simple  question  was, 
whether  any  exclusive  rule  was  necessary.  Assuming  that  the  law 
properly  recognised  any  such  test,  and  that  the  exclusion  of  a 
*witness  on  the  ground  of  interest  was  in  some  cases  requi- 
L  ~  -■  site,  a  general  rule  must  be  laid*"  down,  and  the  law  must  ex- 
clude all  persons  falling  within  it.  To  exclude  all  who  had  any 
interest  whatever  had  been  found  by  experience  to  be  impolitic  and 
unwise ;  to  admit  all  who  had  an  interest  was  considered  to  be  un- 
safe. The  line  must  be  drawn  somewhere.  To  adopt  a  standard  of 
pecuniary  amount,  where  the  value  of  the  subject  matter  in  dispute 
was  often  the  very  point  to  be  ascertained  by  the  verdict,  and  where 
in  all  cases  the  resulting  incident  of  costs  must  necessarily  be  ex- 
tremely uncertain,  would  be  impracticable.  Such  a  standard,  too, 
would  be  irrational,  unless  the  pecuniary  circumstances  as  well  as 
the  moral  principles  of  the  person  to  whom  it  was  applied  were  the 
same.  The  sum,  for  example,  which  might  offer  an  irresistible 
temptation  to  a  poor  or  immoral  man  to  commit  perjury,  would  in 
nowise  influence  a  wealthy  or  conscientious  person.  In  truth,  the 
infinite  variety  of  human  circumstances  rendered  any  test  which 
should  be  wholly  free  from  objection  on  the  score  of  inequality  utterly 
impracticable.  The  only  course  was,  if  interest  were  to  form  a 
barrier,  to  select  that  class  who  in  the  vast  majority  of  instances  had 
so  strong  a  motive  operating  upon  them  as  to  create  great  risk  that 
they  might  be  induced  to  commit  the  demoralizing  crime  of  perjury, 
and  wlio  would  most  probably  present  evidence  on  which  it  would  be 
unsafe  to  proceed. 

To  the  rule  of  exclusion,  however,  as  it  existed  before  the  passing 
of  the  statutes  just  mentioned,  there  were  two  exceptions.     The  first 


INTEREST.  26 

was  where  the  witness  had  prcviouslj,  and  with  a  view  to  deprive  a 
party  of  the  benefit  of  his  testiinony,  or  even  wilfully  and  wantonly, 
acquired  an  interest  in  the  event:  for  this  was  to  be  considered  as  a 
species  of  fraud  upon  the  individual  or  the  public,  who  had  an  interest 
in  his  testimony.  2dly.  The  law  admitted  the  testimony  of  an 
interested  witness,  on  the  ground  of  the  necessity  of  the  case,  Avhere, 
in  the  common  course  of  human  affairs,  if  the  witness  were  to  be 
considered  as  *incompetent,  a  failure  of  justice  would  result  r:j;97-i 
from  defect  of  testimony.^     These  exceptions,  however,  were 

^  In  general,  the  interest,  to  exclude  a  witness,  must  not  have  arisen  after  the 
fact  to  which  he  is  called  to  testify  happened,  by  his  own  act  and  without  the 
interference  and  consent  of  the  party  calling  him  :  Jackson  v.  Riimsei/,  3  Johns. 
R.  237 ;  Tiirnei/  v.  Knox,  7  Monr.  91.  An  interest  in  the  event  of  a  suit,  acquired 
after  the  commencement,  does  not  render  a  witness  incompetent,  unless  that 
interest  was  acquired  from  the  party  offering  him  :  Rhem  v.  Jackson,  2  Dev.  187. 
Yet  if  a  witness  offered  by  the  plaintiff  has  become  interested  in  the  event  of  the 
suit,  by  a  bond  fide  contract  with  the  defendant,  made  in  the  regular  course  of 
business,  and  without  any  intention  of  the  defendant  or  the  witness  to  deprive 
the  plaintiff  of  his  testimony,  he  is  incompetent,  although  such  interest  was 
created  after  the  plaintiff  had  become  entitled  to  his  testimony :  Eastman  v. 
Winship,  14  Pick.  44.  G. 

Where  the  party  objecting  to  a  witness,  on  the  ground  of  interest,  which  was 
acquired  by  a  contract  entered  into  subsequently  to  his  knowledge  of  the  facts 
he  is  brought  to  prove,  is  himself  a  party  to  the  agreement  creating  the  interest, 
or  had  any  agency  in  causing  it  to  be  created,  the  witness  may  be  admitted  to 
testify,  notwithstanding  such  interest :  Burgess  v.  Lane,  3  Greenl.  165  ;  Manches- 
ter Iron  Co.  V.  Sweeting,  10  Wend.  1G2.  A  witness  cannot  deprive  a  party  of  his 
evidence,  by  creating  a  subsequent  interest  by  his  own  act,  without  the  concur- 
rence of  the  party  calling  him  ;  much  less  can  he  do  so  by  agreement  with  the 
opposite  party  :  Hafner  v.  Irwin,  4  Ired.  529  ;  Baylor  v.  Smithers,  1  Litt.  105 ; 
Long  V.  Bailie,  4  S.  &  R.  222;  McDanieVs  Will,  2  J.  J.  Marsh.  331  ;  Price  v. 
Woods,  1  Monr.  223  ;  Clark  v.  Brown,  1  Barb.  215.  If,  however,  the  subscrib- 
ing witness  to  an  instrument  becomes  interested  and  a  party  to  the  cause,  even 
though  he  does  so  voluntarily,  he  cannot  be  examined  as  a  witness  ;  Blackwelder 
V.  Fisher,  4  Dev.  &  Batt.  204. 

Servants  and  agents,  though  interested,  are,  in  general,  admissible  as  witnesses 
from  necessity:  Fishery.  Willard,  13  Mass.  379;  Phillips  v.  Bridge,  11  Ibid. 
242  ;  Eice  v.  Grove,  22  Pick.  158  ;  Fuller  v.  Wheelock,  10  Ibid.  135  ;  Alexander 
V.  Emerson,  2  Litt.  25  ;  Phelps  v.  Sinclair,  2  N.  II,  554  ;  Sewall  v.  Fitch,  8  Cow. 
215 ;  Shepard  v.  Palmer,  6  Conn.  95 ;  Livingston  v.  Swannick,  2  Dall.  300 ;  U. 
S.  Bank  v.  Stearns,  15  Wend.  314 ;  Stafford  Bank  v.  Cornell,  1  N.  H.  193  ;  Bk. 
of  Kentucky  v.  McWilliams,  2  J.  J.  Marsh.  256;  Wainright  v.  Strata,  15  Vt. 
215  ;  Stringfellow  v.  Marriott,  1  Ala.  573  ;  Stathard  v.  Call,  7  Mo.  318  ;  Doe  v. 
Himelick,  4  Blackf.  494 ;  Gilpin  v.  Howell,  5  Barr  41 ;  Bean  v.  Pear  sail,  12  Ala. 
592;  Wright  v.  Rogers,  18  La.  Ann.  671 ;  The  State  v.  Holloway,  8  Blackf.  45  ; 
Nicholls  V.  Guihor,  20  111.  255.  An  agent  is  competent  to  prove  his  own 
authority :  Kent  v.  Tyson,  20  N.  11.  121 ;  Miles  v.  Cook,  1  Grant  58 ;  Wolf  v. 


27  EXCLUDING     PRINCIPLES. 

rare,  and  confined  principally  to  the  cases  of  a  servant  who  trans- 
acted his  master's  business,  and  who,  in  the  usual  course  of  affairs, 
was  the  only  person  who  could  give  evidence  for  his  master :  of  a  wife 
on  a  charge  against  the  husband  of  having  committed  a  violence  to  her 
person ;  and  of  one  who  brought  an  action  against  the  hundred  under 
the  statute  to  recover  the  value  of  the  property  of  which  he  had  been 
robbed ;  for  here,  from  the  very  nature  of  the  case,  it  was  highly 
improbable  that  he  should  be  able  to  adduce  any  witness  to  prove 
the  robbery.'  It  was  not  sufficient  that  the  inability  to  procure 
evidence  should  result  from  the  circumstances  of  a  particular  case, 
for  that  would  have  amounted  to  little  short  of  the  destruction  of  the 
general  rule :  the  necessity  must  have  arisen  from  a  general  presump- 
tion arising  from  the  nature  of  the  case,  that  in  the  common  course 
of  human  affairs  there  would  be  a  defect  of  evidence  and  a  failure  of 
justice,  unless  such  evidence  was  admitted. 

Acting  upon  the  principle  of  these  exceptions  to  a  certain  extent, 
and  the  great  probability  that  in  trifling  transactions  the  parties 
themselves  would  be  the  only  persons  who  could  speak  to  them,  and 
regarding  also  the  limit  of  the  interest  which  the  restricted  nature  of 
their  jurisdiction  involved,  the  legislature,  in  establishing  courts  for 
the  recovery  of  small  debts,  formerly  provided  in  many  instances 
that  the  parties  themselves  should  be  competent  witnesses.  When 
these  tribunals  came  to  be  swept  away  by  the  provision  for  the  estab- 

'  Pinckney  v.  Inhabitants  De  Rotel,  2  Wins.  Saund.  374  ;  2  Roll.  Abr.  685.  So 
in  cases  of  extortion  by  duress,  7  Mod.  119,  120  ;  and  in  suing  for  penalties  under 
5  Anne,  c.  1,  s.  5:  E.  v.  Lockup,  1  Ford,  MSS.  542;  Willes  425,  n.  (c.)  ;  the 
plaintiff,  or  party  interested  might  be  a  witness.  And  see  Lock  v.  Hai/ton,  Fort. 
246 ;  also  the  instance  of  the  deposition  of  the  defendant  in  an  action  for  a  ma- 
licious prosecution  made  on  the  occasion  of  the  charge :  Jackson  v.  Bull,  2  M.  & 
Rob.  176. 

Smith,  14  Ind.  360;  Caldwell  v.  Wentworth,  16  N.  II.  318;  Piercy  v.  Kedrick, 
2  W.  Va.  458  ;  3[anawaij  v.  State,  44  Ala.  375. 

The  exception  to  this  rule  is  where  an  action  is  brought  against  the  principal 
or  master  to  recover  for  the  negligence  or  malfeasance  of  the  servant  or  agent : 
Railrod  Co.  v.  Kidd,  7  Dana  245  ;  Newbold  v.  Wilkins,  1  Ilarring.  43  ;  Middle- 
kavf  V.  Smith,  1  Md.  329;  McClurev.  Whitesides,  2  Cart.  573.  An  agent  is 
incompetent  as  a  witness  when  he  has  been  guilty  of  any  tortious  act  or  negli- 
gence in  executing  the  orders  of  his  principal  in  respect  of  which  he  would  be 
liable  over  to  tlie  latter  should  he  fail  in  his  suit :  Ware  v.  Bennett,  18  Tex.  794. 
The  general  rule  is  that  an  agent  is  competent  for  his  principal,  except  in  cases 
where  tlie  [)rinoipal  is  sued  on  account  of  the  negligence  of  the  agent;  Struthers 
V.  Kendall,  5  Wright  214  ;  llorne  v.  Memphis  It.  It.  Co.,  1  Cald.  72  ;  Memphis  R. 
It.  Co.  v.  Tiujwell,  Ibid.  91.     Sac  post  p.  122,  note  1. 


INTEREST.  27 

lishment  of  the  County  Courts,''  the  question  of  the  exclusion  of  in- 
terested  witnesses    necessarily  came    under    discussion,  and    it    was 
thought  more  beneficial,  upon  *the  whole,  to  enact  that  before    r^Qo-i 
those  tribunals  the  parties,  their  wives,  and  all  other  persons 
might  be  examined. 

Hence  immediately  arose  a  great  inconsistency.  By  far  the 
greater  proportion  of  the  numerous  demands  recoverable  in  these 
were  also  recoverable  in  the  Superior  Courts ;  in  the  former,  the 
evidence  of  the  party  was  to  be  weighed,  in  the  latter  it  was  to  be 
deemed  wholly  unworthy  of  trust.  It  thus  appeared  as  if  the  Supe- 
rior Courts  had  less  efficacious  means  of  testing  the  truth  of  evidence 
and  detecting  falsehood  than  these  inferior  tribunals.  The  plaintiff, 
too,  who  had  his  option  as  to  where  he  should  sue,  if  his  own  testi- 
mony would  be  adverse,  or  he  knew  the  evidence  of  the  defendant 
could  establish  his  defence,  sued  in  the  Superior  Court  and  excluded 
the  evidence,  and  no  equivalent  option  was  given  to  a  defendant. 
The  jurisdiction  of  these  courts  having  been  considerably  enlarged 
and  a  far  wider  option  being  thus  afforded  to  plaintiffs,  and  the  mat- 
ters of  which  they  were  enabled  to  take  cognisance  having  become 
still  more  important,  it  was  deemed  unreasonable  any  longer  to  pre- 
serve a  distinction  between  the  practice  of  the  different  tribunals  in 
these  respects.  Hence  the  legislature,  in  the  last  session  of  Parlia- 
ment,' abrogated  the  whole  of  the  exceptions  contained  in  Lord  Den- 
man  s  Act,  save  that  which  related  to  the  admissibility  of  the  hus- 
bands and  wives  of  the  several  persons  mentioned  in  those  excep- 
tions, and  enacted™  that  the  parties  to  any  proceeding  in  any  court, 
and  the  persons  in  whose  behalf  it  might  be  brought  or  defended, 
should  be  competent  and  compellable  to  give  evidence.  Suits  and 
proceedings,  however,  instituted  in  consequence  of  adultery,  and 
actions  for  breach  of  promise  of  mai'riage,  were  thought  to  stand  upon 
a  peculiar  footing,  and  therefore  such  proceedings  were  excepted.''^ 

"  9  &  10  Vict.  c.  95,  8.  83. 

'  14  &  15  Vict.  c.  99,  post,  p.  140.  ■"  Sect.  2.  "  Sect.  4. 

^  There  are  many  cases  in  which  interested  persons  are  admitted  at  common 
law,  even  though  they  may  be  parties  to  the  record.  A  large  class  of  such  cases 
is,  where  one  party  is  allowed  to  prove  by  his  own  oath  his  book  of  original 
entries,  to  substantiate  a  charge  against  the  other  party  for  goods  sold  and  de- 
livered, or  for  work  and  labor  done  ;  but  it  does  not  subject  him  to  cross-exami- 
nation generally  :  Eastman  v.  Moulton,  3  N.  H.  156  ;  Weed  v.  Bishop,  7  Conn. 
128  ;  Fredd  v.  Eves,  4  Ilarring.  385  ;  Wehh  v.  Pindergrass,  Ibid.  439  ;  Bobbins 
V.  Merritt,  31  Me.  451.  The  plaintiff  in  an  action  is  admissible  to  prove  the 
value  of  his  property  which  the  defendant  has  been  guilty  of  a  felonious,  fraudu- 


28  EXCLUDING     PRINCIPLES. 

In  crlniinal  cases  the  examination  of  the  person  charged  has  ever 
been  regarded  in  England  with  great  aversion,  more  especially  as  the 

lent,  or  other  tortious  intermeddling!;  with,  when  no  other  evidence  can  be  had 
of  the  amount  of  the  damao;es  :  Queener  v.  Morrotv,  1  Cold.  123.  Another 
class  is,  where  a  party  is  admitted  to  prove  notice,  or  the  loss  of  a  paper,  or 
death  or  absence  of  a  subscribing  witness,  as  preliminary  to  the  introduction  of 
secondary  evidence,  whenever  such  evidence  is  addressed  to  the  judge  merely: 
Jordan  v.  Coojyer,  3  S.  &  R.  564  ;  Douglass  v.  Sanderson^  2  Dall.  116  ;  Chamber- 
lain V.  Gorham,  20  Johns.  144 ;  SiUzell  v.  Michael,  3  W.  &  S.  329  ;  Juzan  v. 
Toulmin,  9  Ala.  662 ;  Fitch  v.  Bogue,  19  Conn.  285 ;  Glassell  v.  Mason,  32  Ala. 
719  ;  Stevens  v.  Eeed,  37  N.  II.  49  ;  Morgan  v.  Jones,  24  Ga.  155.  But  when 
demand  or  notice  is  a  substantive  fact,  necessary  to  make  out  the  case,  it  must 
be  proved,  as  other  facts,  by  competent  testimony ;  Grant  v.  Leaven,  4  Barr 
393.  So  a  party  suing  a  common  carrier  for  the  loss  of  a  trunk  containing 
personal  appiirel,  has  been  admitted  to  testify  to  the  contents  on  the  principle 
of  necessity ;  Herman  v.  Drinkwafer,  1  Greenl.  27  ;  County  v.  Leidi/,  10  Barr 
45;  Sparrv.  Willman,  11  Mo.  230.  Contra:  Snow  v.  Eastern  R.  R.  Co.,  12 
Mete.  44;  Parmelee  v.  McNidty,  19  111.  556  ;  Garvey  v.  Camden  &  Amhoy  R.  R. 
Co.,  1  Hilt.  280  ;  Nolan  v.  Ohio  R.  R.  Co.,  39  Mo.  114  ;  Williams  v.  Frost,  Ibid. 
518.  A  guest  is  a  competent  witness  to  prove  the  value  of  his  trunk  lost  at  an 
inn:  Kitchens  v.  Bobbins,  29  Ga.  713.  Contra:  Pope  v.  Hall,  14  La.  Ann.  693  ; 
Packard  v.  Northcraft,  2  Mete.  (Ky.)  439.  But  in  such  an  action  it  was  held 
that  the  plaintiff  was  incompetent  to  prove  that  there-  was  money  in  the  trunk, 
and  how  much :  David  v.  Moore,  2  W.  &  S.  230.  See  post,  p.  127,  note  1.  In 
many  of  the  United  States  the  provisions  of  statutes  6  &  7  Vict.  c.  85  and  14  & 
15  Vict.  c.  99  have  been  introduced.  Not  only  is  infamy  and  interest  no  longer 
available  objections,  but  parties  to  the  record,  and  even  defendants  indicted  for 
misdemeanor.  When,  however,  one  party  to  a  contract  or  transaction  is  de- 
ceased or  has  become  insane  the  other  party  is  incompetent.  Husband  and  wife 
are  competent  witness  for,  but  not  against  each  other.  It  would  be  a  very  diffi- 
cult task  to  arrange  the  various  decisions  in  the  several  States  upon  these 
statutes.  They  depend,  in  a  great  measure,  upon  the  peculiar  phraseology  of 
the  enactments  and  would  not  bo  of  general  interest  or  importance. 

The  result  of  the  statute  allowing  parties  to  testify  has  not  been  to  blend  in 
one  the  different  characters  of  party  and  witness,  nor  to  obliterate  the  distinc- 
tion between  admissions  of  parties  against  interest  and  statements  out  of  court 
contradictory  to  their  testimony :  Hall  v.  The  Emily  Banning,  33  Cal.  522.  A 
party  who  becomes  a  witness  has  the  same  privilege  as  any  other  witness : 
Brandon  v.  People,  42  N.  Y.  265.  Contra:  Mc Garry  v.  People,  2  Lans.  227. 
The  fact  that  the  party  does  not  offer  himself  as  a  witness  may  be  the  subject  of 
remark  to  the  jury :  State  v.  Bartlett,  55  Me.  200;  Devries  v.  Phillips,  63  N.  C. 
53.  Though  the  defendant  in  a  criminal  case  may  be  allowed  by  a  state  statute 
to  testify  in  his  own  behalf  in  a  state  court,  that  does  not  render  his  testimony 
admissible  in  the  courts  of  the  United  States :  U.  States  v.  Hawthorne,  1  Dill. 
422. 

The  Act  of  Congress  (lleviscd  Statutes,  sect.  858,  p.  162)  provides,  that  "in 
the  courts  of  the  United  States  no  witness  shall  be  excluded  in  any  action  on 
account  of  color  or  in  any  civil  action  because  he  is  a  party  to  or  interested  in 


OATH.  29 

examination  of  a  person  so  charged  *in  his  own  behalf  would  r-^-Qq-] 
involve  his  cross-examination  for  the  prosecution  ;  therefore 
adhering  to  the  ancient  practice,  and  retaining  inviolate  the  principle 
that  no  man  shall  be  bound  to  criminate  himself,  the  statute  also  pro- 
vided that  it  should  not  in  criminal  proceedings  render  anj  person 
charged  with  the  commission  of  any  indictable  offence,  or  any  offence 
punishable  on  summary  conviction,  competent  or  compellable  to  give 
evidence  for  or  against  himself,  or  to  render  any  person  compellable 
to  answer  any  question  tending  to  criminate  himself,  or  in  any  crimi- 
nal proceeding  render  any  husband  or  wife  competent  or  compellable 
to  give  evidence  for  or  against  each  other. 

The  first  great  safeguard  which  the  law  provides  for  the  ascertair/- 
ment  of  the  truth  in  07\lmary  cases,  consists  in  requiring  all  evidence 
to  be  given  under  the  sanction  of  an  oath.  This  imposes  the  strongest 
obligation  upon  the  conscience  of  the  witness  to  declare  the  whole 
truth  that  human  wisdom  can  devise ;  a  wilful  violation  of  the  truth 
exposes  him  at  once  to  temporal  and  to  eternal  punishment. 

A  judicial  oath  may  be  defined  to  be  a  solemn  invocation  of  the 
vengeance  of  the  Deity  upon  the  witness,  if  he  do  not  declare  the 
whole  truth,  as  far  as  he  knows  it." 

Hence  it  follows  that  all  persons  may  be  sworn  as  witnesses  who 
believe  in  the  existence  of  God,  in  a  future  state  of  rewards  and 
punishments,  and  in  the  obligation  of  an  oath,  that  is  who  believe 

"  Est  antem  Jasjurandum  religiosa  adseveratio  per  invocationem  Dei  tanquam 
vindicis  si  juratus  sciens  fefellerit.  Heinec.  pars  3,  s.  13.  See  Whewell,  Ele- 
ments of  Morality,  vol.  i.  p.  367  ;  Tyler  on  Oaths. 

the  issue  tried  :  Provided,  that  in  actions  by  or  against  executors,  administrators 
or  guardians,  in  which  judgment  may  be  rendered  for  or  against  them,  neither 
party  shall  be  allowed  to  testify  against  the  other,  as  to  any  transaction  with  or 
statement  by  the  testator,  intestate  or  ward,  unless  called  to  testify  thereto  by 
the  opposite  party,  or  required  to  testify  thereto  by  the  court.  In  all  other 
respects  the  laws  of  the  state  in  which  the  court  is  held  shall  be  the  rules  of 
decision  as  to  the  competency  of  witnesses  in  the  courts  of  the  United  States  in 
trials  at  common  law,  and  in  equity  and  admiralty." 

The  law  by  which  the  admissibility  of  testimony  in  criminal  cases  must  be 
determined  is  the  law  of  the  state  as  it  was  when  the  courts  of  the  United  States 
were  established  by  the  Judiciary  Act  of  1789  ;  U.  States  v.  Beid,  12  Howard 
(Sup.  C.)  361.  The  statutory  enactments  of  the  states,  in  respect  to  evidence  in 
cases  at  common  law,  are  obligatory  upon  the  courts  of  the  United  States  ; 
Wright  v.  Bates,  2  Black  535.  And  see  as  to  the  construction  of  the  Act  of 
Congress;  Green  v.  U.  States, 9  Wall.  655;  Lucas  v.  Brooks,  18  Ibid.  436.  See 
post,  p.  122,  &c.,  as  to  the  English  statutes  upon  the  subject  of  the  competency 
of  witnesses. 


29  EXCLUDING    PRINCIPLES. 

that  Divine  punishment  will  be  the  consequence  of  perjury  ;^  and 
therefore  Jews,^  Mahometans,''  Gentoos/  or  in  short,  persons  of  any 

P  Cowp.  389  ;  1  Raym.  282. 

"J  Fachina  v.  Sabine,  Stra.  1104;  Morgan'' s  case,  Leach,  52;  2  Hawk.  c.  46,  s. 
152 ;   Omichund  v.  Earlier,  1  Atk.  21  ;  1  Wils.  84 ;  Rex  v.  Taylor,  Peake  11. 

^  Ramkissensent  v.  Barker,  1  Atk.  19 ;  Omichund  v.  Barker,  Willes,  538  ;  1 
Smith,  L.  C.  195. 

^  There  are  some,  though  not,  perhaps,  very  important  differences,  in  the  lan- 
guage of  the  decisions  of  various  courts  in  the  United  States,  on  this  suljject. 
There  is  entire  unanimity  in  holding  that  the  witness  must  believe  in  the  exist- 
ence ©f  God  who  will  punish  falsehood  ;  but  though  some  cases  require  that  he 
should  believe  that  there  is  a  future  state  of  retribution,  others  do  pot  go  to  this 
extent.  Of  the  former  class  are,  Wakefield  v.  Ross,  5  Mason  16 ;  Custiss  v. 
Strong,  4  Day  51 ;  Atwood  v.  Kelton.  7  Conn.  66.  Of  the  latter  class.  Butts  v. 
Sicarticood,  2  Cow.  431 ;  N^oble  v.  People,  Breese  29;  Cuhbison  v.  McCreary,  2 
W.  &  S.  262 ;  Blocker  v.  Bumess,  2  Ala.  354 ;  Brock  v.  Milligan,  10  Ohio  121  ; 
U.  States  V.  Kennedy,  3  McLean  175  ;  Jones  v.  Harris,  1  Strobh.  1(50  ;  Bennett  v. 
The  State,  1  Swan  411  ;  Comm'th  v.  Winnemore,  2  Brewst.  378.  In  Virginia, 
no  person  is  incapacitated  from  being  a  witness  on  account  of  his  religious 
belief:  Perry'' s  case,  3  Gratt.  632.  It  has  been  held  that  an  adult  of  sound  mind 
is  not  to  be  questioned  as  to  his  religious  belief:  Jackson  v.  Gridley,  18  Johns. 
98  ;   CommHh  v.  Barker,  82  Mass.  33. 

Evidence  of  his  declarations  on  the  subject  may  be  received  aliunde:  Norton  v. 
Ladd,  4  N.  H.  444  ;  Beardsley  v.  Foot,  2  Root  399  ;  Scott  v.  Hooper,  14  Vt.  535  ; 
Arnold  v.  Arnold,  13  Vt.  363  ;  Thurston  v.  Whitney,  2  Cush.  104  ;  Anderson  v. 
Mayberry,  2  Heisk.  653,  Want  of  religious  belief  may  be  proved  at  the  option 
of  the  party  seeking  to  exclude  him,  either  by  the  voir  dire  or  by  evidence  of  his 
declarations  previously  made  :  Harrel  v.  State,  1  Head  125.  But  an  honest 
change  of  opinion,  after  declarations  of  disbelief  proved,  may  be  shown  by  com- 
petent evidence  :  Smith  v.  Coffin,  6  Shep.  157  ;  CommHh  v.  Batchelder,  Thacher's 
Crim.  Cas.  191.  See  Peoples.  Harper,  1  Edw.  Sel.  Cas.  130;  though  the  wit- 
ness himself  cannot  be  heard  in  explanation  or  denial :  Smith  v.  Coffin,  6  Shep. 
157  ;  The  State  v.  Toionsend,  2  Ilarring.  543  ;  CommHh  v.  Wyman,  Thacher's 
Crim.  Cas.  432.  Contra,  that  the  witness  may  himself  be  examined :  Scott  v. 
Hooper,  14  Vt.  535.  The  defendant  called  a  witness,  to  whom  the  plaintiff  ob- 
jected, on  the  ground  of  an  alleged  want  of  religious  belief,  and  the  judge 
admitted  the  testimony  of  witnesses  in  support  of,  and  in  opposition  to,  the 
objection  ;  and  afterwards  the  person  objected  to  was  examined  on  his  voir  dire, 
and  having  testified  to  his  belief,  was  admitted  to  give  evidence  in  chief;  held 
that  there  was  no  error  in  this  :  Quinn  v.  Crowell,  4  Whart.  334.  This  last  case, 
however,  was  really  decided  on  the  ground  that  there  is  no  bill  of  exceptions  in 
the  case  of  introductory  evidence  to  the  Court,  where  the  evidence  in  chief  was 
properly  admitted  or  excluded.  "AVhat  boots  it,  then,  that,  even  were  the 
proper  course  otherwise,  parol  evidence  of  the  witness's  disqualification  was 
heard  before  he  himself  was  heard?  The  order  of  proof,  even  to  a  jury,  is  not 
the  subject  of  error;  and  to  examine  him  to  his  own  competency  would  have 
assumed  the  fact  in  controversy,  which  it  was  determined,  in  Griffith  v.  Reford, 
(1  Ilawlc  197,)  cannot  be  done."  Gibson,  C.  J.     See^os^,  p.  1 16,  note  1. 


OATH.  30 

sect  possessed  of  such  belief/  are  so  far  competent  *witnesses.  r^on-i 
Hence  also  it  follows  that  children  who  are  too  young  to  com- 
prehend the  nature  of  an  oath,'  and  adults,  who  from  mental  infirm- 
ity or  for  want  of  instruction  do  not  understand  this  solemn  obliga- 
tion, or  who  do  not  believe  in  the  existence  of  a  Deity,  or  in  a  state 
where  that  Deity  will  punish  perjury,"  cannot  be  admitted  as  wit- 
nesses; since,  in  all  these  cases,  either  from  want  of  understanding 
or  want  of  belief,  that  obligation  to  speak  the  truth  is  wanting  which 
the  law  has  appointed  on  such  occasions  as  an  indispensable  security.^ 

'  1  Wils.  84;  Reg  v.  Entrehman,  Car.  &  M.  248  ;  and  see  note  (y),  post,  (41 
E.  C.  L.  R.)- 

'  Vide  supra;  and  see  East,  P.  C.  441 ;  and  R.  v.  Potoell,  Leach,  C.  C.  L.  128,  237. 

"  An  atheist  is  not  competent ;  B.  N.  P.  262 ;  Rex  v.  White,  Leach,  C.  C.  L. 
483  ;  Lee  v.  Lee,  1  Atk.  43,  45  ;  Co.  Litt.  6  ;  2  Inst.  479 ;  3  Inst.  165  ;  4  Inst.  279  ; 
Fleta,  b.  5,  c.  22  ;  Bract.  116.  See  Rex  v.  Taylor,  Peake,  Ca.  Ni.  Pri.  11,  where 
Buller,  J.,  held  that  the  proper  question  to  be  asked  of  a  witness  is,  whether  he 
believes  in  God,  the  obligation  of  an  oath,  and  in  a  future  state  of  rewards  and 
punishments:  and,  in  Reg  v.  Serva,  2  Car.  &  K.  (61  E.  C.  L.  R.)  56,  on  a  wit- 
ness stating  that  he  was  a  Christian,  Piatt,  B.,  refused  to  allow  the  witness  to 
be  asked  any  further  questions  before  he  was  sworn. 

^  The  capacity  of  a  witness  under  fourteen  years  is  to  be  determined  by  the 
Court;  Comm'th  v.  Hutchinson,  10  Mass.  225  ;  Anon.,  2  Penn.  930  ;  Van  Pelt  v. 
Van  Pelt,  Ibid.  657.  If  over  fourteen  years  of  age,  he  will  not  be  interrogated 
respecting  his  capacity,  unless  some  reason  creating  suspicion  be  shown  :  Den  v? 
Vandeve,  2  South.  589.  The  evidence  of  a  child  of  seven  years  of  age,  corrobo- 
rated by  circumstances,  is  sufficient  to  justify  a  conviction  of  a  capital  crime, 
although  that  evidence  be  contradicted  by  the  evidence  of  an  adult ;  the  credi- 
bility of  the  witnesses  being  left  to  the  jury  ;  State  v.  Leblanc,  Const.  Rep.  354. 
In  a  criminal  trial  a  child  seven  years  of  age  may  testify  ;  but  his  credibility  is 
a  matter  for  the  jury  to  consider.  Washburn  v.  People,  10  Mich.  372.  No  pre- 
cise age  is  fixed  under  which  a  child  is  incompetent ;  it  depends  upon  the  dis- 
cretion of  the  Court  in  view  of  all  the  circumstances.  People  v.  Bernal,  10  Cal. 
6  ') ;  State  v.  Denis,  19  La.  Ann.  119 ;  Kilburn  v.  Mullin,  22  Iowa,  498 ;  Hanagan  v. 
State,  25  Ark.  92  ;  Warner  v.  State,  Ibid.  447  ;  Comm'th  v.  Careg,  2  Brewst.  404. 

Idiots,  lunatics,  and  madmen  are  not  competent  witnesses  :  Livingston  v.  Hier- 
sted,  10  John.  362 ;  Evans  v.  Hetticlc,  7  Wheat.  453  ;  Armstrong  v.  Timmons,  3 
Harring.  342.  To  exclude  a  witness  from  testifying  as  being  non  compos,  or  an 
idiot,  the  fact  must  be  proved  by  other  testimony,  and  not  by  a  preliminary  ex- 
amination of  the  w'tness,  and  even  if  the  Court  have  any  discretion,  still  it  is 
not  error  for  them  to  refuse  to  alloAV  it ;  Robinson  v.  Dana,  16  Vt.  474.  The 
question  whether  a  person  who  is  offered  as  a  witness  is  insane  at  the  time  is 
for  the  Court ;  aliter  insanity  at  the  time  of  the  transaction  to  which  he  testifies 
is  for  the  jury;  Holcomb  v.  Holcomb,  28  Conn.  177.  A  witness  who  is  intoxi- 
cated, ought  not  to  be  sworn  or  permitted  to  testify  ;  Hartford  v.  Palmer,  16 
Johns.  143 ;  Gould  v.  Crawford,  2  Barr,  89.  It  is  no  objection  to  a  witness  that 
he  has  been  found  an  habitual  drunkard,  under  the  provisions  of  an  Act  of 


30  EXCLUDING     PRINCIPLES. 

As  the  object  of  the  oath  is  to  bind  the  conscience  of  the  witness, 
it  follows  that  some  form  of  swearino;  must  be  used  which  the  witness 
considers  to  be  binding.  On  the  principles  of  the  common  law,  no 
particular  form  is  essential  to  the  oath ;  and  therefore  every  witness 
is  now''  sworn  according  to  the  form  which  he  holds  to  be  the  most 
solemn,  and  which  is  sanctified  by  the  usage  of  the  country  or  of  the 
sect  to  which  he  belongs. ^  A  Jew  is  sworn  upon  the  Pentateuch,^ 
p^o-i-i  and  a  Turk  upon  the  *Koran  ;*  so  it  has  been  held  that  a 
Scotch  covenanter''  may  be  sworn  according  to  the  form  of  his 
sect,  by  holding  up  his  hand  without  kissing  the  book.  A  Jew  who 
has  never  formally  renounced  the  religion  of  his  ancestors,  but  con- 
siders himself  to  be  a  member  of  the  established  church,  may  be  sworn 
on  the  Gospels.''^ 

^  Cowp.  389  ;  Colt  V.  Button,  2  Sid.  6  ;  Ry.  &  M.  (21  E.  C.  L.  R.)  77.  By  the 
stat.  1  &  2  Vict.  c.  105,  every  person  shall  be  bound  by  an  oath,  which  shall 
have  been  administered  in  such  form  and  with  such  ceremonies  as  he  may 
declare  to  be  binding,  and  is  liable  to  be  indicted  thereon  for  perjury. 

y  It  was  formerly  doubted  -whether  the  oath  must  not  be  taken  on  the  Old  or 
New  Testament ;  2  Hale  279  ;  but  it  was  afterwards  settled  that  it  need  not ;  1 
Atk.  21  ;  2  Eq.  Ca.  Abr.  397  ;  1  Wils.  84 ;  Cowp.  390. 

^  It  was  held  that  Jews  might  be  sworn  on  the  Pentateuch  previous  to  their 
expulsion  from  England  ;  i.  e.  before  the  18  Edw.  I.,  when  they  were  first  expelled 
from  the  kingdom  :  Wells  v.  Williams,  1  Ld.  Raym.  282 ;  Vern.  263 ;  Cowp.  389. 
See  Seld.  torn.  2,  fol.  1467,  as  to  the  form  of  swearing  a  Jew,  temp.  Edw.  I. 

'  Fachina  v.  Sabine,  Stra.  1104;  Morgan's  case,  Leach,  C.  C.  L.  64. 

"  Per  Lord  Mansfield,  Cowp.  390;  Bex  v.  Mildrone,  Leach,  C.  C.  L.  459  ;  Mee 
V.  Bead,  Peake,  Ca.  Ni.  Pri.,  23  ;  Bex  v.  Fitzpatriclc,  Leach,  459;  2  Sid.  6,  Colt 
V.  Button.  When  Lord  Ilardwicke  was  desired  to  appoint  a  form  for  swearing 
the  Gentoos,  he  said  that  it  was  improper,  and  that  it  must  be  taken  according 
to  the  form  which  they  held  to  be  the  most  solemn  :  Bamkissensent  v.  Barker,  1 
Atk.  19. 

•^  B.  V.  Gilham,  1  Esp.  C.  285.  A  member  of  a  religious  sect  which  objects  to 
the  ceremony  of  kissing  the  book,  may  be  sworn  without  it :  Mee  v.  Bead,  Peake, 
C.  23  ;  Mildrone^ s  case,  Leach,  C.  C.  L.  459 ;  Colt  v.  Button,  2  Sid.  6.  A  wit 
ness  being  of  the  Methodist  persuasion,  refusing  to  be  sworn  on  the  New  Testa- 
ment, was  permitted  to  Jte  sworn  on  the  Old,  stating  he  considered  it  binding  on 
his  conscience  ;  Edmonds  v.  Bowe,  Ry.  &  M.  (21  E.  C.  L.  R.)  77  ;  and  see  1  & 
2  Vict,  c  105,  supra,  note  (x). 

Assembly  depriving  such  persons  of  legal  competency  to  act:  Gebhart  v.  Shindle, 
15  S.  &  R.  235.  A  deaf  and  dumb  person,  capable  of  relating  facts  correctly 
by  signs,  may  give  evidence  by  signs  through  the  medium  of  an  interpreter, 
though  it  appear  that  such  person  can  read  and  write,  and  communicate  ideas 
imperfectly  by  writing:  The  State  v.  J)e  Wolf,  8  Conn.  93:  Snyder  v.  Nations, 
5  liluckf.  295. 

'  Swearing  )»y  the  uplifted  hand  is  recognised  as  a  lawful  oath,  independent 
entirely  of  the  provision  of  any  statute  allowing  it :   Gill  v.  Caldwell,  Breese  28  ; 


OATH.  31 

The  testimony  must  be  sanctioned,  not  merely  by  on  oatli,  but  by 
a  judicial  oath,  in  the  course  of  a  regular  proceeding,  administered 
by  an  authorized  person  ;  for  if  the  oath  were  extrajudicial,  the  wit- 
ness could  not  be  punished  for  committing  perjury  under  that  oath, 
and  therefore  one  of  the  securities  for  truth  which  the  law  has  pro- 
vided would  be  wanting.  Hence,  although  every  other  legal  requi- 
site may  concur  to  render  what  a  party  has  sworn  admissible,  and 
although  the  fullest  opportunity  has  been  afforded  to  the  opposite 
party  to  cross-examine  the  witness,  yet  if  the  oath  was  extrajudicial, 
the  testimony  given  under  it  is  not  admissible.  A  further  objection 
to  such  evidence  is,  that  the  party  against  whom  it  was  offered  was 
not  bound  to  notice  it,  and  he  ought  not  to  be  placed  in  a  worse 
situation  by  omitting  to  make  himself  a  party  to  an  extrajudicial 
*and  illegal  proceeding.  This  doctrine  and  the  minor  distinc-  r^oy-i 
tions  arising  upon  it,  will  be  more  fully  discussed  hereafter, 
when  the  different  cases  relating  to  the  reception  of  judicial  proceed- 
ings in  evidence  are  considered;  for  the  present,  it  may  suffice  to 
observe,  that  it  is  a  general  rule  that  testimony  given  under  an  oath 
merely  extrajudicial,  cannot  afterwards  be  admitted  in  evidence,  for 
the  reasons  already  stated. 

There  are  two  exceptions  to  the  general  rule;  the  case  of  declara- 
tions made  by  a  person  under  the  apprehension  of  impending  dis- 
solution, and  the  exception  introduced  by  the  express  provisions  of 
the  legislature  in  favor  of  the  religious  scruples  of  Quakers  and 
some  otliers.  The  principle  upon  which  the  first  of  these  exceptions 
stands  is  very  clear  and  obvious;  it  is  presumed  that  a  person  who 
knows  that  his  dissolution  is  fast  approaching,  that  he  stands  on  the 
verge  of  eternity,  and  that  he  is  to  be  called  to  an  immediate  account 

Doss  V.  -Birks,  11  Hump.  481.  In  Massachusetts,  the  liberty  to  affirm  is  con- 
fined strictly  to  Quakers  ;  U.  States  v.  Coolid(/e,  2  Gallis.  364.  A  witness,  who 
has  no  objection  to  beini^  sworn,  cannot  be  affirmed:  Williamson  v.  Carroll,  1 
Harrison  217.  Oaths  are  to  be  administered  to  all  persons  according  to  their 
opinions,  and  as  it  most  affects  their  consciences :  Gill  v.  Caldwell,  Breese,  28. 
The  oath  of  a  Jew,  complainant  to  an  injunction  bill,  must  be  made  according 
to  the  forms  and  solemnities  of  the  Jewish  religion  :  Newman  v.  Newman,  3 
Ilalst.  Ch.  Rep.  26.  The  manner  of  administering  an  oath  or  affirmation  in  a 
court  of  record,  proceeding  according  to  the  course  of  the  common  law,  is  pre- 
sumed to  be  correct  and  legal,  unless  it  appear  to  be  otherwise  on  the  fp.ce  of  the 
record  :  Coxe  v.  Field,  1  Green  215.  A  Chinaman,  who  stated  that  he  did  not 
know  the  name  of  the  book  he  was  SM^orn  on,  ])ut  that  he  believed  that  if  he 
would  state  anything  untrue  the  Court  would  punish  him,  and  that  after  his 
death  he  would  "  go  down  there,"  making  an  emphatic  gesture  downward  with 
his  hand,  was  held  to  be  competent.     The  Merrimac,  1  Benedict  490. 


32  EXCLUDING    PRINCIPLES. 

for  all  that  he  has  done  amiss,  before  a  Judge  from  whom  no  secrets 
are  hid,  will  feel  as  strong  a  motive  to  declare  the  truth,  and 
to  abstain  from  deception,  as  any  person  who  acts  under  the  obli- 
gation of  an  oath.''  But  so  jealous  is  the  law  of  any  deviation  from 
the  general  rule,  .that  it  confines  the  exception  to  the  necessity  of  the 
case,  and  only  renders  such  declarations  admissible  when  they  relate 
to  the  cause  of  death,  and  are  tendered  on  a  criminal  charge  respect- 
ing it/  The  exception  in  favor  of  Quakers,  formerly  confined  to  civil, 
has  lately  been  extended  to  criminal  proceedings,  and  similar  provi- 
sions have  been  made  in  favor  of  some  other  religious  sects.' 

r*331  • 

L       -I    *The  rank  or  age  of  the  party  in  no  case  forms  an  exception. 

A  peer  of  the  realm  cannot  give  evidence  without  being  sworn,™  and 
will  incur  a  contempt  of  court  if  he  refuses  to  be  sworn."  It  is  not 
settled  that  the  testimony  of  a  child  cannot  be  received  except  upon 
oath,"  although  the  contrary  practice  once  prevailed. ^ 

Formerly,  the  general  rule  did  not  extend  to  the  witnesses  ex- 
amined on  behalf  of  prisoners  charged  upon  an  indictment  with 
felony  or  treason  f  an  exception  which  certainly  was  not  founded  in 

^  This  being  the  ground  of  the  exception,  it  has  been  held  that  if  the  declarant 
was  an  infant  too  young  to  comprehend  such  a  sanction,  the  declaration  is  not 
admissible ;  Rex  v.  Pike,  3  C.  &  P.  (14  E.  C.  L.  R.)  598. 

"=  E.  V.  Mead,  2  B.  &  C.  (9  E.  C.  L.  R.)  605. 

'  By  the  stat.  9  Geo.  IV.  c.  32,  Quakers  and  Moravians  are  admitted  to  give 
evidence  upon  their  solemn  affirmation  in  all  caseS,  criminal  as  well  as  civil.  By 
the  stat.  3  &  4  Will.  IV.  c.  49,  their  affirmation  has  the  same  force  and  effect  as 
an  oath  in  the  usual  form.  By  the  stat.  3  &  4  Will.  IV.  c.  82,  similar  provisions 
are  extended  to  Separatists  ;  and,  in  consequence  of  the  decision  in  Doraii's  case, 
2  Mood,  C.  C.  37,  by  the  stat.  1  &  2  Vict.  c.  77,  to  persons  who,  having  been 
Quakers  or  Moravians,  have  ceased  to  be  such. 

■"  Rex  V.  Lord  Preston,  Salk.  27S. 

°  Ibid.  And  it  has  been  said  that  the  same  rule  applies  to  the  Sovereign 
himself;  2  Rol.  Abr.  086  ;  Hob.  213  ;  but  in  the  time  of  Car.  I.  the  question  was 
not  allowed  to  be  agitated ;  1  Pari.  His.  43.  See  3  Woodeson  276  ;  Com.  Dig. 
Testmoigne,  A. 

"  Rex  V.  Brasier,  Leach,  C.  C.  L.  3d  ed.  237  ;  Ibid.  128  ;  and  see  the  cases, 
East,  P.  C.  441  ;  Pike's  case,  3  C.  &  P.  (14  E.  C.  L.  R.)  598 ;  R.  v.  Williams,  7 
C.  &  P.  320 ;  and  post,  tit.  Infant. 

P  The  Court  should  hear  the  information  of  children  not  of  discretion  to  be 
sworn  without  oath  ;  1  Hale,  II.  P.  C.  634 ;  2  Hale,  H.  P.  C.  279,  284.  But 
Lord  Hale  adds,  that  such  testimony  is  not  sufficient  of  itself;  1  Hale,  H.  P.  C. 
634. 

^  Hut  the  evidence  for  a  defendant  upon  an  appeal,  or  on  an  indictment  or  in- 
formation for  a  misdemeanor,  was  always  on  oath  ;  1  Sid.  211,  325. 

■■  2  Hale,  283  ;  2  JJulstr.  147  ;  Rex  v.  Throijmorion,  State  Tr.  1  M.  ;  Hawk.  c. 
36  ;  Rex  v.  Collcjc,  3  Inst.  79  ;  4  State  Tr.  178  ;  Cro.  Car.  292. 


OATH.  33 

principle,  and  which  was  reprobated  by  Lord  Coke/  The  statute  4 
Jac.  I.  c.  1,  directed,  that  upon  the  trial  of  offenders  in  the  tiiree 
northern  counties,  for  offences  committed  in  Scotland,  the  defendants' 
witnesses  should  be  examined  upon  oath  ;  and  a  like  provision  was 
made  by  the  stat.  7  Will.  III.  c.  3,  in  all  cases  of  treason  which 
worked  corruption  of  blood.  The  exception  was  finally  and  generally 
abolished  by  the  *stat.  1  Anne,  c.  9,  s.  3,  which  directed  that  i -^o^-i 
the  witnesses  for  the  prisoner  should  be  sworn  in  all  cases. 

The  recent  Bankruptcy  Acts'  have  also  introduced  another  excep- 
tion, so  far  as  the  examination  of  the  bankrupts  and  their  wives 
before  the  Commissioners  is  concerned,  by  directing  that  on  that 
inquiry  they  shall  not  be  sworn,  but  make  and  sign  a  declaration 
that  they  will  speak  the  truth,  for  a  violation  of  which  they  may  be 
indicted. 

It  will  presently  be  seen  under  what  circumstances  evidence  is 
admissible,  though  it  want  the  sanction  of  an  oath. 

And  next,  the  power  given  to  the  party  against  whom  evidence  is  \ 
offered,  of  cross-exayimiing  the  witness  upon  whose  authority  the  \ 
evidence  depends,  constitutes  a  strong  test  both  of  the  ability  and  of 
the  willingness  of  the  witness  to  declare  the  truth.  By  this  means,  \ 
the  opportunity  which  the  witness  had  of  ascertaining  the  fact  to  1 
which  he  testifies,  his  ability  to  acquire  the  requisite  knowdedge,  his  1 
powers  of  memory,  his  situation  with  respect  to  the  parties,  his/ 
motives,  are  severally  examined  and  scrutinized. 

It  is  not  intended  in  this  place  to  eater  into  a  detail  of  the 
numerous  consequences  which  follow  from  the  adoption  of  this  test." 
It  may  be  observed,  generally,  that  it  operates  to  the  exclusion  of  all 
that  is  usually  described  as  res  iyiter  alios  acta;  that  is,  to  all  declara- 
tions and  acts  of  others  which  tend  to  conclude  or  affect  the  rights  of 
a  mere  stranger. 

Thus   the  depositions  of  witnesses  before   magistrates,  under  the 

statutes  of  Philip  and  Mary,  and  the  late  stat.  7  Geo.  IV.  c.  64,  are 

not  admissible  against  the  accused,  unless  he  has  had  an  opportunity 

to  cross-examine  those  witnesses. 

The    voluntary    affidavit    of    a    stranger    is    not    evidence    r*o-n 

to  [*3o] 

*against  one  who  had  not  the  power  to  cross-examine  him.'' 


'  3  Inst.  79.     The  practice  was  derived  from  the  civil  law  ;  4  Bl.  Com.  352. 
'  8  &  9  Vict.  c.  48,  s.  1  ;  12  &  13  Vict.  c.  106,  ss.  117,  118. 
"  See  tit.  Judgments — Depositions. 

^  Bac.  Abr.  Ev.  627  ;   Sty.  446 ;  Bac.  Abr.  Ev.  628  ;  and  see  Eex  v.  EritJi,  8 
East  539 ;  Sir  John  Femcick's  case,  Obj.  4 ;  5  State  Tr.  69. 
3 


35  EXCLUDING     PRINCIPLES. 

An  answer  in  Chancery  is  not  evidence  against  one  who  neither  was 
a  party  to  the  suit,  nor  claims  in  privity  with  a  party  who  had  the 
opportunity/  And,  in  general,  the  mere  act,  declaration  or  entry  of 
a  stranger,  as  to  any  particular  fact,  is  not  evidence  against  any 
other  person,^  so  as  to  conclude  or  affect  him. 

To  satisfy  this  principle,  it  is  not  necessary  that  the  party  on 
whose  authority  the  statement  rests  should  be  present  at  the  time 
when  his  evidence  is  used,  in  order  that  he  may  then  be  cross- 
examined;  it  is  sufficient  if  the  party  against  whom  it  was  offered 
has  cross-examined,  or  has  had  the  opportunity,  having  been  legally 
called  upon  to  do  so  Avhen  the  statement  was  made.  Hence  it  is 
that  examinations  or  depositions  taken  in  a  cause  or  proceeding 
between  the  same  parties  are  evidence,  the  witnesses  or  deponents 
being  dead ;  for  in  such  case,  the  party  has  had,  or  might  have  had, 
the  benefit  of  a  cross-examination.  With  respect  to  these  classes  of 
cases,  it  is  worthy  of  notice,  that  if  the  party  might  have  had  the 
benefit  of  a  cross-examination  in  the  course  of  a  judicial  proceeding, 
it  is  the  same  thing  as  if  he  had  actually  availed  himself  of  the 
opportunity.  It  is  also  to  be  observed,  that  if  the  examination  or 
deposition  was  taken  in  the  course  of  an  extrajudicial  proceeding, 
it  will  not  afterwards  be  admissible  in  evidence,  although  the  witness 
be  since  dead ;  because  the  party  against  whom  the  evidence  is  offered 
was  under  no  obligation  to  pay  any  attention  to  it.** 

This  test  of  truth  not  only  excludes. evidence  of  mere  hearsay,  for 
there  the  party  on  whose  authority  the  statement  rests  cannot  be 
P^qp-i  cross-examined;  but  also  decrees  *and  judgments  in  private 
matters,  in  causes  to  which  the  party  against  whom  they  are 
offered  was  not  privy,  and  consequently  where  he  had  not  the  oppor- 
tunity to  cross-examine  the  witnesses  on  whose  testimony  the  judg- 
ment or  decree  was  founded.  For,  as  it  would  be  dangerous  to 
admit  the  testimony  of  a  witness  given  upon  a  former  occasion, 
where  the  party  to  the  present  cause  had  no  opportunity  to  cross- 
examine  him,  it  would  be  equally  so  to  admit  the  judgment  or  decree 
which  is  founded  upon  that  testimony  ;  it  would  be  indirectly  giving 
full  effect  to  evidence  which  is  in  itself  inadmissible.^ 

y  Ilardres.  315,  ^  See  Index,  tit.  Res  inter  alios. 

*"Sec  tit.  IIes  inter  alios — Judicial  Proceedings,  iSrc. 

'  It  seems  hardly  necessary  to  note  that  the  subject-matter  of  dispute  must 
bo  tlic  same  in  both  cases:  Walker  v.  Walker-,  16  S.  &  R.  379  ;  Taylor  v.  Bank 
of  11111101.1,  7  Monr.  070.  AVlicre  the  subject-matter  is  the  same,  though  the 
l)iirtics  iiro  not  the  same,  it  is  oiiouji;h  that  thoy  are  in  privity  :   Cooper  \.  Smith, 


CROSS-EXAMINATIO  N II  E  A  R  S  A  Y.  36 

It  is,  however,  to  be  observed,  that  there  is  one  class  of  cases 
where  decrees  or  judgments  are  evidence  against  a  party,  although 
he  was  not  actually  privy  to  the  proceeding  or  suit  in  which  the 
judgment  or  decree  was  pronounced.  This  happens  where  the  suit 
or  proceeding  does  not  relate  to  a  mere  private  transaction  between 
individuals  or  particular  parties,  but  to  some  more  public  subject- 
matter  beyond  the  mere  rights  of  the  litigants,  in  which  the  public 
possesses  an  interest.  It  will  be  necessary  hereafter  to  consider 
these  cases  with  some  minuteness  ;  for  the  present,  it  may  suffice  to 
advert  to  them  generally,  and  briefly  to  state  the  principle  on  which 
such  evidence  is  admissible ;  and  how  far  it  is  inconsistent  with  the 
general  and  ordinary  rule,  that  a  party  is  not  to  be  affected  either 
by  any  testimony  or  judgment  founded  upon  that  testimony,  where 

8  Watts  536  ;  Merrill  v.  Bill,  6  Sm.  &  Marsh.  730.  The  question  of  boundary 
is  a  peculiar  one.  There  a  deposition  may  be  read,  though  not  regularly  taken 
in  a  judicial  proceeding,  because  it  is  a  case  in  -which  even  hearsay  is  admissible 
under  certain  restrictions:  Montgomery  v.  Dickey,  2  Yeates  212:  Bakertw  Day. 
3  Wash.  C.  C.  243.  Depositions  cannot  be  read,  unless  taken  in  reference  to  an 
issue  made  up  at  the  time  they  were  taken  :  Morrow  v.  Hatfield,  6  Humph.  108. 

The  testimony  of  a  deceased  witness  may  be  given  in  evidence  upon  a  subse- 
quent trial  of  the  same  cause.  It  is  also  competent,  in  a  subsequent  suit  between 
the  same  parties  or  their  privies,  provided  the  point  in  issue  be  the  same  :  Orr 
V.  Hadley,  36  N.  11.  575.  To  render  it  admissible  it  is  not  material  that  the  par- 
ties should  be  identical,  or  that  there  be  complete  mutuality  in  respect  to  their 
relation  to  each  other.  It  is  enough  if  the  same  matter  was  in  issue  in  both  cases, 
and  those  against  whom  the  deposition  is  offered,  or  those  under  whom  they 
claim  had  the  opportunity  of  cross-examination  :  Wade  v.  King,  19  111.  301  ; 
HaiqM  V.  Henninger,  1  Wright  138;  Cannon  v.  White,  16  La.  Ann.  85.  See 
Woods  V.  Keyes,  14  Allen  236  ;  Cantrell  v.  Hewlett,  2  Buck  311  ;  Wilder  v.  St. 
Paul,  12  Minn.  192  ;  Adair  v.  Adair,  39  Ga.  75  ;  State  v.  Staples,  47  N.  H.  113; 
Camden  R.  B.  Co.  v.  Stewart,  4  Green  343  ;  Cook  v.  Stout,  47  111.  530;  O^Brien 
V.  Comen,  6  Burke  563  ;  Birney  v.  Mitchell,  34  N.  J.  Law  337. 

The  notes  of  an  attorney  of  the  testimony  of  a  deceased  witness,  taken  on  a 
former  trial  of  the  same  cause,  which  he  swears  he  believes  to  be  correct,  though 
he  does  not  remember  the  evidence,  are  admissible :  Ashe  v.  De  Rossett,  5  Jones 
(Law)  299.  The  notes  are  inadmissible  as  evidence  per  se;  but  the  attorney 
may  testify  as  to  the  evidence  of  the  deceased  witness,  and  will  be  allowed  to 
use  his  notes  as  memoranda  to  refresh  his  memory  :  Waters  v.  Waters,  35  Md. 
531.  Evidence  of  the  testimony  of  a  deceased  witness  at  a  former  trial  of  a 
criminal  charge  is  admissible  at  a  second  trial  for  the  same  offence  :  Pope  v. 
State,  22  Ark.  371.  The  substance  of  testimony  given  on  a  former  trial  by  a 
witness  now  deceased  is  admissible  :  Tramm,ell  v.  Hemphill,  27  Ga.  525.  A  wit- 
ness is  not  competent  to  testify  to  what  a  deceased  witness  stated  on  a  former 
trial,  unless  he  can  state  the  substance  of  the  whole  of  his  evidence :  Tibbetis  v. 
Flanders,  18  N.  H.  284  ;  Home  v.  Williams,  23  Ind.  37  ;  Thurmond  v.  Trammell, 
28  Tex.  371 ;  Burson  v.  Huntington,  21  Mich.  415. 


36  EXCLUDING     PRINCIPLES. 

he  has  not  had  an  opportunity  to  cross-examine  the  witness  and  to 
controvert  his  testimony.  In  many  instances  a  court  possesses  a 
jurisdiction  which  enables  it  to  pronounce  on  tlie  nature  and  qualities 
of  a  particular  subject-matter,  where  the  proceeding  is,  as  it  is  tech- 
nically termed  in  rem  :  as  where  the  Ordinary  or  the  Court  Chris- 
tian decides  upon  questions  of  marriage  or  bastardy  ;  or  the  Court  of 
Exchequer  upon  condemnations  ;  or  the  Court  of  Admiralty  upon 
questions  of  prize;  or  a  Court  of  Quarter  Sessions  upon  settlement 
cases.  *Decisions  of  this  nature,  as  will  be  seen,''  are  for  the 
L  -J  most  part  binding  and  conclusive  upon  all  the  world.  At 
present  it  is  to  be  observed,  in  the  first  place,  that  this  class  of  cases 
is  scarcely  to  be  considered  as  an  exception  to  the  general  rule: 
because,  in  most  instances,  every  one  who  can  possibly  be  affected  by 
the  decision  may,  if  he  choose,  be  admitted  to  assert  his  rights  to 
cross-examine  and  to  controvert  by  evidence.  But,  secondly,  if  this 
class  of  cases  is  to  be  considered  as  forming  an  exception  to  the 
general  rule,  it  is  a  necessary  exception,  since  in  such  cases  a  final 
adjudication  is  absolutely  essential  to  the  interests  of  society,  which 
require  that  the  subject-matter  should  be  settled  and  ascertained,  and 
cannot  bear  that  such  questions  should  be  left  in  a  precarious,  doubt- 
ful, and  fluctuating  state.  For  example :  the  Spiritual  Court  has  an 
immediate  and  direct  jurisdiction  upon  the  validity  of  marriages ;  a 
jurisdiction  which  involves  questions  of  the  greatest  importance  to 
society  in  general — rights  of  property — questions  of  bastardy — and 
even  criminal  liabilities.  It  is  therefore  obviously  essential  to  the 
existence  of  such  a  jurisdiction  for  useful  and  beneficial  purposes, 
that  its  adjudication  upon  the  subject-matter  should  be  binding  upon 
all ;  it  would  be  in  vain  that  a  sentence  of  nullity  of  mai'riage  should 
be  pronounced  in  a  Spiritual  Court,  if  the  marriage  could  still  be 
considered  in  courts  of  law  to  exist  as  to  all  the  legal  rights  and 
consequences  of  a  valid  marriage;  and  it  would  produce  infinite 
inconvenience  and  confusion,  if  the  same  marriage  could  be  con- 
sidered as  existing  for  some  purposes,  but  not  as  to  all ;  not  to  men- 
tion the  great  evil  of  permitting  iiiterminable  litigation  on  the  same 
question,  which  would  be  left  open  to  dispute  as  often  as  the  fluctua- 
tion of  times  and  of  circumstances  introduced  new  interests,  and 
brought  fresh  litigants  into  the  field. 

*There  is  another  exception  to  the  general  rule,  in  the  case 
L  '    -•    where  a  declaration  made  by  a  person  in  extremis,  and  under 
the  apprehension  of  approaching  dissolution,  is  received  in  evidence; 
''  Sec  Judgments,  &e.,  in  Rem. 


CROSS-EXAMINATION — DYING     DECLARATION.  38 

for  such  declarations  are  admitted  to  be  proved,  although  the  party 
against  whom  they  are  offered  was  not  present,  and  therefore  had 
not  an  opportunity  to  cross-examine  and  elicit  the  whole  of  the 
truth.  But  as  this  is  an  exception  to  a  rule  which  is  in  general  to 
be  considered  as  absolutely  essential  to  the  ascertainment  of  trutb, 
it  is  to  be  received  with  the  greatest  caution,  and  is  never  admitted, 
unless  the  court  be.  first  satisfied  that  the  party  who  made  the  decla- 
ration Avas  under  the  impression  of  approaching  death,  and  unless  it 
relate  to  the  cause  of  his  death  and  be  tendered  on  a  criminal  charge 
respecting  it.^  It  has  indeed  been  said,  that  the  depositions  of  wit- 
nesses taken  in  the  absence  of  the  prisoner  before  justices  of  the 
peace,  and  before  coroners,  by  virtue  of  the  statutes  1  &  2  Philip  k 
Mary,  c.  10 ;  2  &  3  Philip  &  Mary,  c.  13 ;  and  7  Geo.  IV.,  c.  64  : 
were  admissible  in  evidence  against  the  prisoner  after  the  death  of 
the  deponent ;  but  it  is  now  settled  that  such  depositions  before 
justices  are  not  admissible,  unless  the  prisoner  was  present,  and  had 
the  benefit  of  cross-examination  ;'^  and  depositions  taken  by  coroners, 

•^  See  tit.  Depositions. 

'  A  dying  declaration  having  been  admitted  in  evidence,  evidence  that  the  de- 
ceased was  a  disbeliever  in  a  future  state  of  reward  and  punishments,  is  admis- 
sible to  discredit  it:  Goodall  v.  State,  1  Oreg.  333  ;  Neshit  v.  State,  43  Ga.  238. 

Dying  declarations  are  inadmissible  unless  the  declarant  believed  that  death 
was  impending  not  distant,  and  unless  death  actually  ensued  :  Kilpatrick  v.  The 
Cumm'th,  7  Cas.  198;  State  v.  Cornish,  5  Harring.  502;  BalVs  case,  14  Gratt. 
613;  Thompson  v.  State,  24  Ga.  297;  McHugh  v.  State,  31  Ala.  317;  Brown  v. 
State,  32  Miss.  433;  Rohhlns  v.  State,  8  Ohio  (N.  S.}  131  ;  State  v.  Nash,  7 
Clarke  347  ;  State  v.  Centre,  35  Vt.  378  ;  People  v.  Sanchez,  24  Cal.  17  ;  Murphij  v. 
People,  37  111.  447  ;  Benavides  v.  State,  31  Tex.  579  ;  Hachett  v.  People,  .54  Barb. 
370 ;  Morgan  v.  State,  31  Ind.  193 ;  People  v.  Perry,  8  Abb.  Pr.  N.  S.  27  ;  Jach 
son  v.  ComrnHh,  19  Gratt.  656  ;  Young  v.  CommHh,  6  Buck  312;  State  v.  Quick, 
15  Rich.  (Law)  342  ;  Whitley  v.  State,  38  Ga.  50  ;  People  v.  Vernon,  35  Cal.  49  ; 
CommHh  v.  Deasmon,  12  Allen  535;  People  v.  Kuapp,  1  Edm.  Sel.  Cas.  177; 
State  V.  Wilson,  23  La.  Ann.  558  ;  Dixon  v.  State,  13  Fla.  636  ;  Barnett  v.  People, 
54  111.  325  ;  Comm'th  v.  Briiton,  1  Camp.  13  ;  Hill  v.  State,  41  Ga.  484  ;  Biding  v. 
Johnson,  32  Ind.  155.  The  declaration,  however,  must  state  facts,  not  opinions 
merely:  State  v.  Williams,  67  N.  C.  12;  Wroo  v.  State,  20  Ohio  St.  460.  It  is 
restricted  to  the  trial  of  the  identical  homicide  of  the  person  who  makes  the 
declaration :  Hudson  v.  State,  3  Cald.  355.  As  to  the  admissibility  of  such 
declarations  in  civil  suits  see  Insurance  Co.  v.  Mosley,  8  Wall.  397  ;  Contra, 
Wootcn  V.  Wilkins,  39  Ga.  223  ;  Marshall  v.  Chicago  R.  R.  Co.,  45  111.  475.  The 
declarations  of  persons  injured  as  to  their  pains  and  symptoms  are  admissible  : 
Matteson  v.  Keiv  York  R.  R.  Co.,  62  Barb.  364 ;  Toiole  v.  Blake,  48  N.  II.  92 ; 
Taylor  v.  Grand  Trunk  R.  R.  Co.,  Ibid.  304;  Parkey  v.  Yeary,  1  Ileisk.  157; 
Stiles  \.  Danville,  43  Vt.  282;  Insurance  Co.  v.  Mosley,  8  Wall.  397;  Rogers  v. 
Crain,  30  Tex.  284.     But  see  Ashland  v.  Marlborough,  99  Mass.  47. 


38  EXCLUDING    PRINCIPLES. 

under  the  same  statutes,  seem  to  stand  upon  the  same  foundation. 
The  subject  will  afterwards  be  more  fully  considered  in  its  proper 
place;  it  must  be  recollected  that  at  present  the  object  is  to  consider 
the  general  operation  of  this  principal  test  of  truth  established  by 
the  law.  How  far  reputation  and  tradition  are  to  be  looked  upon 
as  exceptions  to  this  general  rule  will  presently  be  considered. "^ 

*Thus  far  as  to  the  testimony  of  witnesses  to  facts,  within 
L  -I  their  own  actual  knowledge,  under  the  obligation  of  an  oath, 
and  subject  to  cross-examination. 

The  topic  of  the  admissibility  of  evidence  derived  through  the 
testimony  of  others  will  shortly  be  discussed,  but  before  dismissing 
the  present  portion  of  the  subject  of  excluding  principles,  another 
rule  which  operates  to  the  exclusion  of  evidence,  not  generally,  but 
on  comparison  with  other  and  more  satisfactory  evidence,  as  well  as 
some  other  minor  rules,  ought  to  be  noticed.  It  is  a  general  rule 
of  evidence  already  adverted  to,  that  evidence  of  an  inferior  degree 
shall  not  be  admitted  whilst  evidence  of  a  higher  and  more  satis- 
factory degree  is  attainable.^  This  rule,  it  will  be  seen,  depends  on 
a  well-founded  jealousy  that  the  best  evidence  is  withdrawn,  and  the 
inferior  substituted,  from  a  desire  to  suppress  the  truth.  As  this 
is  a  principle  which  affects  the  course  and  order  of  proof,  its  appli- 
cation will  be  better  considered  hereafter,  in  conjunction  with  other 
rules  applicable  to  the  nature  and  modes  of  proof. 

There  are,  also,  some  instances  where  the  law  excludes  particular 
evidence,  not  because  in  its  own  nature  it  is  suspicious  or  doubtful, 
but  on  grounds  of  public  policy,  and  because  greater  mischief  and 
inconvenience  would  result  from  the  reception  than  from  the  exclu- 
sion of  such  evidence;  on  this  account  it  is  a  general  rule  that  the 
husband  and  wife  cannot  give  evidence  to  affect  each  other,  either 
civilly  or  criminally.^     For  to   admit   such   evidence  would  occasion 

•^  There  are  also  some  exceptions  which  have  been  introduced  by,  and  which 
wholly  depend  upouj  particular  statutes ;  but  as  these  are  mere  arbitrary  excep- 
tions, unconnected  with  general  principles,  they  need  not  be  noticed  here. 

•  Taylor  v.  Riggs,  1  Peters  S.  C.  Rep.  596 ;  Cutbush  v.  Gilbert,  4  S.  &  R.  551 ; 
Diickwall  V.  Weaver,  2  Ohio  13. 

■^  A  widow  is  incompetent  to  prove  confidential  communications  of  her  former 
iiiisband  :  Kcator  v.  Dimmick,  4()  Barb.  158  ;  but  conversations  between  husband 
;ind  wife  in  presence  of  a  third  person  are  admissible:  Queener  v.  Morrotv,  1 
<'ald.  12:5 ;  Allison  v.  Barrow,  3  Cald.  414.  A  widow  is  a  competent  witness  on 
brjijilf  of  the  (istate  of  lior  deceased  husband  to  prove  a  conversation  between 
lii-r  husband  and  the  ojjposite  party  :  Sliihlmiiller  v.  Eiring,  3',)  Miss.  447.  So  a 
survisiii^  wife  may  testify  as   to   matters   in   wliicli    her  deceased   husband  was 


CONFIDENTIAL     COMMUNICATIONS.  39 

domestic  dissension  and  discord  ;  it  would  compel  a  violation  of  that 
confidence  which  ought,  from  the  nature  of  tiie  relation,  to  be 
regarded  as  sacred  ;  and  it  would  be  arming  each  of  the  parties  Avith 
the  means  of  offence,  which  might  be  used  for  very  dangerous 
purposes.'' 

*  Upon  the  same  principle,  the  law  prohibits  a  barrister,  ^^  .„., 
solicitor,  or  attorney,  from  divulging  that  which  has  been  ^  J 
reposed  in  him  confidentially  by  his  client.^  This  prohibition  rests 
on  very  obvious  principles  of  convenience  and  policy.  It  is  abso- 
lutely essential  to  the  ends  of  justice  that  the  fullest  confidence  should 
prevail  between  a  litigant  and  those  who  conduct  his  cause :  and  it  is 
equally  clear  that  there  would  be  an  end  of  all  such  confidence,  if  the 

"  Co.  Litt.  6,  b.  See  Vol.  II.,  Husband  and  Wife.  The  rule,  it  will  be  seen, 
does  not  extend  to  criminal  charcres  founded  on  violence  offered  to  the  wife,  and 
the  County  Courts  Act,  9  &  10  Vict.  c.  95,  s.  83,  also  creates  an  exception  to  it. 

interested,  unless  she  acquii'ed  her  knowledf^e  of  the  facts  throui^h  confidential 
communications  from  her  husband :  Ryan  v.  FoUansbee,  47  N.  H.  100  ;  English 
V.  Cropper,  8  Buck  292,  Either  husband  or  wife  may  voluntarily  disclose 
confidential  communications  :  Southwick  v.  Southwick,  2  Sweeny  234;  9  Abb. 
Pr.  N.  S.  109. 

^  To  exclude  the  testimony  of  counsel  it  is  not  necessary  that  there  should  be 
a  cause  depending  in  court  at  the  time  that  his  information  on  the  subject  was 
acquired :  Beltzhoover  v.  Blackstock,  3  Watts  20.  He  may  give  evidence  of  col- 
lateral facts,  such  as  that  a  bond  was  lodged  with  his  client,  by  way  of  indem- 
nity, or  that  his  client  expressed  himself  satisfied  with  a  certain  security  :  Heis- 
ter  V.  Davis,  3  Yeates  4.  So,  when  without  any  communication  from  his  client, 
he  acquires  a  knowledge  of  his  handwriting,  he  may  be  questioned  as  to  its 
identity :  Johnson  v.  Duverne,  19  Johns.  134.  And  he  may  be  examined  whether 
a  note  put  into  his  hands  to  collect  was  endorsed  or  not  :  Baker  v.  Arnold,  1 
Cains  258;  see  also  Chirac  v.  Rheinecker,  11  Wheat.  280;  Riggs  v.  Denniston, 
3  Johns.  Cas.  198;  Brandt  v.  Klein,  17  Johns.  R.  335;  Jackson  v.  McVey,  18 
Johns  R.  330;  Hoffman  v.  Smith,  1  Gaines  R.  157.  And  if,  after  the  relation 
has  ceased,  a  former  client  repeat  to  his  attorney  voluntarily,  and  without  any 
artifice,  used  for  that  purpose,  communications  previously  made,  he  is  a  compe- 
tent witness  as  to  such  communications :  Jordan  v.  Hess,  1-3  Johns.  R.  492.  An 
attorney,  who  was  employed  by  two  several  defendants  to  defend  a  suit,  and 
who  entered  an  appearance  for  all  the  defendants,  without  the  knowledge  and 
consent  of  part  of  them,  is  a  competent  witness  in  a  subsequent  suit  for  con- 
tribution between  the  defendants  who  employed  him,  and  those  who  did  not : 
Cox^s  Ad'r.  v.  Hill,  3  Ohio  Rep.  423.  A  student  in  the  office  of  an  attorney, 
acquiring  his  knowledge  of  facts  while  he  was  in  the  office :  Andrews  v.  Solomon, 
1  Pet.  356  ;  a  confidential  clerk :  Corp  v.  Robinson,  2  Wash.  C.  C.  Rep.  388  ;  or 
a  confidential  agent  or  factor :  Holmes  v.  Comegys,  1  Dall.  439  ;  (dubitatum  in 
Morris  v,  Vanderen,  1  Dall.  66  :)  or  a  physician  :  Heu^ett  v.  Prime,  21  Wend.  79  ; 
are  not  privileged.  G. 


40  EXCLUDING     PRINCIPLES. 

agent  could  be  compelled  to  divulge  all  he  knew.  It  is  sufficient 
here,  according  to  the  plan  originally  proposed,  to  state  this  principle 
generally  :  its  practical  operation  and  effect,  as  to  the  relative  situa- 
tion of  the  parties  when  the  communicatiou  was  made,  the  nature, 
time,  and  manner  of  the  communication,  will  be  discussed  hereafter.*^ 
It  may  be  observed  here,  that  this  is  the  privilege,  not  of  the  counsel 
or  attorney,  but  of  the  client ;  and,  therefore,  that  the  former  ought 
not  to  be  allowed  to  divulge  his  client's  secrets,  even  though  he  should 
be  willing  to  do  so. 

The  same  principle  evidently  applies  to  the  case  of  an  attorney's  or 
barrister's  clerk,  and  of  an  interpreter  between  an  attorney  and  his 
client.^  1 

''See  Vol.  II.,  tit.  Confidential  Communication. 

8  Da  Barre  v.  Livette,  Peake,  N.  P.  C.  77. 

^  Rhoads  v.  Selin,  4  Wash.  C.  C.  Rep.  718  ;  Chirac  v.  Relnicker,  11  Wheat. 
280  ;  Jordan  v.  Hess,  13  Johns.  492  ;  Parker  v.  Carter,  4  Munf.  273  ;  Craivford 
V.  McKissack,  1  Port.  433 ;  Jenkinson  v.  The  State,  5  Blackf.  465 ;  Chew  v. 
Farmers''  Bank,  2  Md.  Ch.  Decis.  231.  The  privilege  is  not  confined  to  facts 
disclosed  in  relation  to  suits  pending,  but  extends  to  all  cases  in  which  a  counsel 
or  attorney  is  applied  to,  in  the  line  of  his  profession,  whether  such  facts  were 
communicated  with  an  injunction  of  secrecy  or  for  the  purpose  of  asking  advice 
or  otherwise  :  Parker  v.  Carter,  4  Munf.  273  ;  Beltzhover  v.  Blackstock,  3  Watts 
20;  Wheeler  v.  Hill,  4  Shepl.  329;  Marsh  v,  Ludlum,  3  Sanf.  Ch.  Rep.  35; 
Crosby  v.  Berger,  11  Paige  377  ;  Aiken  v.  Eilburne,  27  Me.  253  ;  Bank  of  Utica 
V.  Mersereau,  3  Barb.  Ch.  R.  528  ;  McLellan  v.  Longfelloio,  32  Me.  494  ;  Weather- 
bee  V.  Ezekiel,  25  Vt.  47  ;  Rileij  v.  Johnston,  13  Ga.  260 ;  Parkhurst  v.  McGraiv, 
24  Miss.  134.  Attorneys  are  bound  to  testify  as  to  any  matter  concerning  their 
clients  which  has  come  to  their  knowledge  in  any  other  way  than  by  confiden- 
tial communication  :  Rhoads  v.  Selin,  4  Wash.  0.  C.  Rep.  718;  Rogers  v.  Dare, 
Wright  136  ;  Heister  v.  Davis,  3  Yeates  4 ;  Johnson  v.  Duverne,  19  Johns.  134; 
Coolney  v.  Tannahill,  1  Hill  33  ;  Bogert  v.  Bogert,  2  Edw.  Ch.  Rep.  399  ;  Granger 
V.  Warrington,  3  Gilm.  299  ;  Levors  v.  Van  Buskirk,  4  Barr  309  ;  Pierson  v. 
Stroriz,  1  Morris  136.  Counsel  may  be  asked  by  whom  he  was  retained :  Chirac 
T.  Rienecker,  11  Wheat.  280;  Brown  v.  Payson,  6  N.  II.  443;  Cox  v.  Hill,  3 
Hamm.  411  ;  Caniff  v.  Myers,  15  Johns.  246;  Goioer  v.  Emery,  6  Shepl.  79; 
Wheeler  V.  Hill,  4  Shepl.  329.  If,  after  the  relation  of  attorney  and  client  has 
ceased,  the  client  voluntarily  repeat  to  the  attorney  what  he  has  communicated 
while  that  relation  existed,  he  is  a  competent  witness  as  to  this  communication  : 
Jordan  v.  Hess,  13  Johns.  492.  An  attorney  is  not  j)rivileged  as  a  witness  from 
communicating  facts,  concerning  his  client,  where  he  is  himself  a  party  to  the 
transactions  or  agreement,  which  he  is  called  upon  to  disclose;  tlicrefore  it  was 
held  that  an  attorney  wlio  was  summoned  as  garnislico  in  an  attachment  sur 
judgment,  was  bound  ♦o  answer  interrogatories  as  to  whether  he  had  received 
from  his  client  a  sum  of  money,  in  trust  to  pay  a  certain  percentage,  to  such  of 
his  creditors  as  would  accept  the  same  in  full  satisfaction  of  tlieir  respective 
debts  :  Jeancs  v.  Fridrnbtrg,  5  I'cnna.  Law   .Journal  65.     An  attorney  is  not  to 


CONFIDENTIAL    COMMUNICATIONS,  40 

Here,    however,    the    law    draws   the    line,    and    the    principle   of 
policy  which,  in  the  instance  of  husband  and  wife,  and  of  attorney 

judge  what  is  or  is  not  privileged.  He  must  state  the  occasion  and  circumstances 
of  the  act  or  communication,  and  the  general  nature  of  the  matter  alleged  to  be 
privileged,  so  that  the  Court  may  decide  vrhether  he  shall  be  compelled  to  tes- 
tify in  regard  to  it  or  not :  Jeanes  v.  Frideiiherg,  5  Penna.  Law  Journal  65. 
This  rule  does  not,  however,  apply  when  the  client  has  no  interest  in  the  suit 
in  which  the  attorney  is  called  to  testify.  Therefore,  in  an  action  by  the  payee 
against  the  maker  of  a  promissory  note,  in  whfch  the  defence  was  that  the 
amount  of  the  note  had  been  paid  by  an  assignment  made  by  the  defendant  to 
the  plaintiff  of  a  mortgage  given  to  the  defendant,  and  it  appeared  that  a  suit 
had  been  brought  by  the  assignee  upon  the  mortgage,  and  that  it  had  failed  on 
the  ground  of  the  mortgage  having  been  paid  previously  to  the  assignment,  it 
was  held  that  the  attorney  and  counsel  of  the  mortgagor  might  be  required  to 
testify  on  the  part  .of  the  plaintiif  as  to  the  facts,  respecting  the  payment  of  the 
mortgage,  which  he  had  acquired  as  attorney  :  Hamilton  v.  Neel,  7  Watts  517. 
A  debtor  requested  an  attorney  to  draw  up  a  mortgage  of  his  personal  property, 
and  disclosed  the  purpose  of  the  transaction,  but  neither  asked  nor  received  any 
legal  advice  as  to  its  effect — the  attorney's  testimony  as  to  such  disclosure  is 
admissible:  Hatton  v.  Bobinson,  14  Pick.  416  ;  Contra,  Bank  of  Utica  v.  Merse- 
reau,  3  Barb.  Ch.  Rep.  5:2S  ;  Moore  v.  Brai/,  10  Barr  519  ;  Crisler  v.  Garland j 
11  Sm.  &  M.  136.  Communications  made  to  an  attorney  in  his  professional 
capacity,  by  an  owner  of  property,  respecting  a  transfer  of  it,  are  privileged : 
Foster  v.  Ball,  12  Pick,  89  ;  Beltzhoover  v.  BlackstocJc,  3  Watts  20.  A  com- 
munication voluntarily  made  to  counsel,  after  he  has  refused  to  be  employed  by 
the  party  making  it,  does  not  come  within  the  rule  of  confidential  communica- 
tions :  Sitzar  v.  Wilson,  4  Ired,  501  ;  Beeson  v.  Beeson,  9  Barr  279.  But  not 
such  as  are  made  before  :  Beed  v.  Smith,  2  Cart.  160,  An  attorney  who  draws 
up  a  will  is  competent  to  testify  of  its  contents,  in  order  to  set  it  up  as  a  last 
will ;  and  his  testimony  is  not  subject  to  the  objection  that  it  discloses  confiden- 
tial communications  of  a  client:  Graham,  v.  0^ Fallon,  4  Mo,  338,  Counsel  pro- 
fessionally consulted  may  be  compelled  to  testify,  if  the  privilege  be  waived  by 
the  party  who  consulted  him,  although  the  subject  has  been  assigned  to  a  third 
person  who  objects:  Benjamin  v.  Coventry,  19  Wend,  353,  The  seal  of  profes- 
sional confidence  has  never  been  held  to  cover  a  communication  made  to  an 
attorney  to  obtain  professional  advice  or  assistance  as  to  the  commission  of  a 
felony  or  any  other  crime,  which  is  malum  in  se  :  Bank  of  Utica  v.  Mersereau, 
3  Barb.  Ch.  Rep.  528.  An  attorney  or  counsel  who,  as  such,  has  been  intrusted 
with  papers,  is  not  bound  to  produce  them  on  the  call  of  the  opposite  party  or 
of  a  third  person  :  Jackson  v.  Burtis,  14  .Johns.  391  ;  Lynde  v.  Judd,  3  Day  499  ; 
Durkee  v.  Leland,  4  Vt,  612.  Yet  he  may  be  called  on  to  prove  the  existence 
of  such  papers,  and  that  they  are  in  his  possession,  so  as  to  enable  the  opposite 
party,  on  the  attorney's  refusal  to  produce  them,  to  give  parol  evidence  of  their 
contents :  Bhoads  v.  Selin,  4  Wash,  C,  C,  Rep,  718  ;  Brandt  v.  Klien,  17  Johns. 
335  ;  Jackson  v,  McVey,  18  Johns.  330  ;  Coolney  v.  Tannahill,  1  Hill  33.  A  party 
wishing  to  avail  himself  in  evidence  of  a  paper  in  possession  of  his  adversary's 
attorney,  must  give  notice  to  produce  it :  he  cannot  compel  its  production  by  a 
subpoena  to  the  attorney:  ifcPAerson  v.  ^a^Aftone,  7  Wend,  216,     Facts  stated 


40  EXCLUDING    PRINCIPLES. 

and  client,  forbids  a  violation  of  confidence,  ceases  to  operate. 
The  law  will  not  permit  any  one  to  withhold  from  the  information  of 
the  jury  any  communication  which  is  imp^prtant  as  evidence,  how- 
ever secret  and  confidential  the  nature  of  that  communication  may 
have  been,  although  it  may  have  been  made  to  a  physician  or  sur- 
geon, or  even  to  a  divine,  in  the  course  of  discharging  his  profes- 
sional duties ;  for  it  has  even  been  held  that  a  minister  is  bound  to 
disclose  that  which  has  be.en  revealed  to  him  as  a  matter  of  religious 
confession.''  ^ 

*Upon  a  principle  of  humanity,  as  well  as  of  policy,  every 
L  -^  witness  is  protected  from  answering  questions  by  doing 
which   he  would  criminate   himself.^      Of  policy,    because    it   would 

^  Butler  V.  Moore,  Macnally  253  ;  Vaillant  v.  Dodemead,  2  Atk.  524  ;  E.  v. 
.Gilham,  Mood.  C.  C.  186. 

to  an  attorney  to  show  that  the  cause  in  which  he  is  thought  to  be  retained  does 
not  conflict  with  the  interests  of  a  client  for  whom  he  is  already  employed,  are 
not  confidential  communications  :  Heaton  v.  Findlay,  2  Jones  304.  The  pri- 
vilege does  not  apply  to  a  student  in  the  office  of  an  attorney :  Barnes  v.  Harris, 
7  Cush.  576  ;  Andrews  v.  Solomon,  Peters  C.  C.  356  ;  Holman  v.  Kimball,  22  Vt. 
555.     Nor  to  a  stranger  casually  present :  Jackson  v.  French,  3  Wend.  337. 

^  That  a  confession  made  to  a  Roman  Catholic  priest  is  not  evidence,  see 
Smith's  case,  1  Roger's  Rec.  77  ;  Contra,  per  Gibson,  C.  J.  ;  Simon^s  ExWs  v. 
Gratz,  2  Penna.  Rep.  417.  But  confessions  to  a  Protestant  divine  are  not  pri- 
vileged: Smith's  case,  supra;  Commomvealth  v.  Drake,  15  Mass.  161,  See 
Phillip''s  case,  Sampson's  Roman  Catholic  Question  in  America,  Pamphlet. 
Witnesses  must  testify  what  a  party  told  to  them  in  confidence  and  under  an 
engagement  of  secrecy,  unless  they  are  attorneys  of  the  party  in  the  cause  ; 
Mills  V.  Grisivold,  1  Root  383.  A  telegraphic  operator  is  not  privileged  to  re- 
fuse to  give  contents  of  telegram  :   State  v.  Litchfield,  58  Me.  267. 

^  To  excuse  a  witness  from  answering  a  question  on  this  ground,  the  Court 
must  see  that  the  answer  may  in  some  way  criminate  the  witness  or  render  him 
infamous,  involve  him  in  shame  or  i-eproach,  or  expose  him  to  penalties  or  pun- 
ishment, in  any  of  which  cases  he  is  not  bound  to  answer  a  question  :  Tlie  Peo- 
ple v.  Mather,  4  Wend.  229  ;  Territory  v.  Nugent,  1  Mart.  R.  114;  Vandervoort 
V.  The  Col.  Ins.  Co.,  3  Johns.  Cas.  137  ;  Jackson  v.  Humphrey,  1  Johns.  R.  498 ; 
Grannis  v.  Brandon,  5  Day  260  ;  Respublica  v.  Gibbs,  3  Yeates  429,  437  ;  Gal- 
braith  v.  Eichelberger,  3  Yeates  515;  Vaugh  v.  Perrine,  2  Penna.  728  ;  Marbury  v. 
Madison,  1  Cranch  144  ;  U.  S.  v.  Darnaud,  3  Wall.  Jr.  143, 179  ;  State  v.  Staples, 
47  N.  H.  1 13  ;  Taylor  v.  Jennings,  5  Rab.  581  ;  Clark  v.  Reese,  35  Cal.  89  ;  Ford 
V.  State,  29  Ind.  541  ;  Foster  v.  People.  18  Mich.  266  ;  Simmons  v.  Holster,  13 
Minn.  249  ;  J'Jaton  v.  Farmer,  46  N.  II.  200;  Lea  v.  Henderson,  1  Cald.  146; 
Jie  Lewis,  39  How.  Pr.  155  ;  State  v.  Hopkins,  23  Wis.  309  ;  Peal  v.  People,  42 
N.  Y.  270;  Tifft  V.  Moon,  59  Barb.  619;  Forney  v.  Ferrill,  4  W.  Va.  729; 
Comm.  V.  Curtis,  97  Mass.  574.  The  rule  of  practice  upon  this  subject  was  thus 
stated   by  Chief  Justice   Marshall  :    "  It   is  the  province  of  the  Court  to  judge 


SELF-CRIMINATION STATE    SECRETS.  41 

place  the  witness  under  the  strongest  temptation  to  commit  the  crime 
of  perjury  ;  and  of  humanity,  because  it  would  be  to  extort  a  con- 
fession of  the  truth  by  a  Jcind  of  duress,  every  species  and  degree  of 
which  the  law  abhors."  It  is  pleasing  to  contrast  the  humanity  and 
delicacy  of  the  law  of  England  in  this  respect  with  the  cruel  pro- 
visions of  the  Roman  law,  which  allowed  criminals,  and  even  wit- 
nesses in  some  instances,  to  be  put  to  the  torture,  for  the  purpose  of 
extorting  a  confession.-"^ 

'  It  is  partly  upon  this  principle  that  an  examination  of  a  prisoner,  taken 
before  a  magistrate  on  oath,  cannot  be  afterwards  read  against  him  as  a  confes- 
sion. And  evidence  extorted  in  violation  of  this  privilege  cannot  be  used  to 
establish  an  indictment  for  the  crime  against  the  witness  :  Reg.  v.  Garhett,  2 
Car.  &  K.  (61  E.  C.  L.  R.)  474. 

J  See  Quintilian's  Inst. ;  C.  De  Tormentis,  Pan.  lib.  48,  s.  242.  See  the  cases 
on  this  subject  coWected. post,  tit.  Witness. 

whether  any  direct  answer  to  the  question,  which  may  be  proposed,  will  furnish 
evidence  against  the  witness.  If  such  answer  may  disclose  a  fact,  which  forms 
a  necessary  and  essential  link  in  the  chain  of  testimony  which  would  be  suffi- 
cient to  convict  him  of  any  crime,  he  is  not  bound  to  answer  it,  so  as  to  furnish 
matter  for  that  conviction.  In  such  a  case  the  witness  must  himself  judge  what 
his  answer  will  be,  and  if  he  says  on  oath  he  cannot  answer,  without  accusing 
himself,  he  cannot  be  compelled  to  answer:"  United  States  v.  Burr,  1  Burr's 
Trial  245 ;  see  also  State  v.  Edwards,  2  Nott  &  M'Cord  13.  A  witness  may 
be  asked  a  question,  the  answer  to  which  will  criminate  him  ;  and  if  he  has  no 
objection,  may  answer  it;  his  privilege  is  personal  only;  but  it  is  the  duty  of 
the  Court  to  advertise  him  of  it :  Southard  v.  Rexford,  6  Cow.  254.  And  if  he 
voluntai'ily  state  a  fact,  he  is  bound  to  state  how  he  knows  it,  though  it  crimi- 
nate him  :  State  v.  K.,  4  N.  H.  562.  Thus  he  cannot  be  compelled  to  say 
whether  or  not  he  had  ever  had  criminal  connection  with  the  plaintiff.  Ibid. 
Nor  whether  he  had  not  been  convicted  of  petit  larceny,  and  whether  he  was 
not  then  in  confinement  under  that  conviction :  The  People  v.  Herrick,  13 
Johns.  82.  But  he  may  be  called  and  examined  in  a  matter  pertinent  to  the 
issue  when  his  answers  will  not  expose  him  to  criminal  prosecution,  or  tend  to 
subject  him  to  a  penalty  or  forfeiture,  though  they  may  otherwise  affect  his  pecu- 
niary interest:  Bull  v.  Loveland,  10  Pick.  9 ;  Taney  v.  Kemp,  4  liar.  &  Johns. 
348  ;  Stoddart  v.  Manning,  2  liar.  &  Gill.  147 ;  Baird  v.  Cochran,  4  S.  &  R. 
397;  Nass  v.  Va7i  Swearingen,  7  S.  &  R.  192;  Gorham  v.  Carol,  3  Lit.  221; 
Canover  v.  Bell,  6  Monr.  157 ;  Cobb  v.  Upham,  3  N.  H.  159 ;  Comm'th  v. 
Thurston,  7  J.  J.  Marsh.  03  ;  Planters^  Bank  v.  George,  6  Mart.  670.  Contra, 
Benjamin  v.  Hathaway,  3  Conn.  528  ;  Storrs  v.  Wetmore,  Kirby  203 ;  Starr  v. 
Tracy,  2  Root  528 ;  Cook  v.  Corn,  1  Overt.  340 ;  Appleton  v.  Boyd,  7  Mass.  R. 
131.  Per  Marshall,  C.  J.,  United  States  v.  Grundy,  3  Cranch  344;  Tatem's 
Executors  v.  Lofton,  Cooke  115.  So  in  the  case  of  liability  to  a  forfeiture  of 
money  won  at  play,  a  party  must  answer  on  a  bill  of  discovei-y :  Slaman  v. 
Kelly,  4  Younge  &  Collyer  169  ;  see  also  Mauran  v.  Lamb,  7  Cow.  174.  See 
post,  p.  204,  note.  G. 

*  People  V.  Herrick,  13  Johns.  82;  Grannis  v.  Brandon,  5  Day  260  ;  State  v. 
Bailey,  1  Penn.  415;  United  States  v.  Craig,  4  Wash.  C.  C.  Rep.  729;  Poindex- 


41  EXCLUDING     PPINCIPLES. 

There  are  some  instances  in  which  particular  evidence  is  excluded 
on  the  ground  of  policy,  where  the  disclosure  might  be  prejudicial  to 

ter  V.  Davis,  6  Gratt.  481.  It  is  not  confined,  however,  to  cases  where  the 
answer  of  the  witness  would  render  him  liable  to  a  criminal  proceeding  or 
penalty.  It  is  enou.o;h  if  his  answer  will  have  a  tendency  to  stigmatise  or  dis- 
grace him  :  Vaughn  v.  Paine,  2  Penn.  728  ;  Sodusky  v.  McGee,  5  J.  J.  Marsh. 
621;  United  States  v.  Dickinson,  2  McLean  325;  The  People  v.  Rector,  14 
Wend.  569  ;  Lohman  v.  People,  1  Comst.  379  ;  Contra,  Clementine  v.  State,  19 
Mo.  112.  It  is  not  proper  to  ask  a  witness  whether  he  has  ever  been  convicted 
of  a  felony  :  the  answer  tends  to  degrade  his  character,  and  the  fact  is  provable 
by  a  higher  evidence  of  it — the  record  of  his  conviction :  Kirschner  v.  State,  9 
Wise.  140.  It  is  however  the  privilege  of  the  witness,  and  he  may  waive  it  if 
he  thinks  proper :  Fries  v.  Brugler,  7  Halst.  79  ;  Southard  v.  Rexford,  6  Cow. 
254;  Sodusky  v.  McGee,  5  J.  J.  Marsh.  621  ;  The  State  v.  Patterson,  2  Ired. 
.346  ;  Short  v.  The  State,  4  Barring.  5(j8  ;  Howel  v.  The  ComniHh,  5  Gratt.  664  ; 
CommHh  v.  Shaw,  4  Cush.  594;  Green  v.  Starnes,  I  Heisk.  582.  If  the  witness 
voluntarily  states  a  fact,  he  is  bound  to  state  how  he  knows  it,  although  in  so 
doing  he  may  expose  himself  to  a  criminal  charge.  If  he  state  any  part  he  must 
state  the  whole:  State  v.  K.,  4  N.  H.  562  ;  Chamberlain  v.  Willson,  12  Vt.  491  ; 
Amherst  V.  Hollis,  9  N.  H.  107;  People  v.  Lohman,  2  Barb.  Sup.  Ct.  Rep.  216  ;  The 
State  V.  Foster,  3  Fost.  348.  Where  he  voluntarily  testifies  in  chief  on  a  particu- 
lar subject,  he  may  be  cross-examined  on  the  subject,  even  though  his  answers 
may  criminate  or  disgrace  him :  Norfolk  v.  Gaylord,  28  Conn.  309 ;  CommHh  v. 
Price,  10  Gray  472.  If  he  would  avail  himself  of  the  right  to  refuse  to  answer  on 
the  ground  that  the  answer  would  criminate  him,  he  must  make  the  objection 
before  answering  anything  upon  that  subject :  Comm'th  v.  Hoice,  13  Gray  26.  The 
matter  need  not  be  directly  criminal,  if  it  has  a  tendency  to  subject  him  or  will 
form  a  link  in  the  evidence,  the  witness  is  entitled  to  object  and  he  and  not  the 
court  is  the  judge  of  that :  State  v.  Edwards,  2  Nott  &  M'Cord  13  ;  People  v. 
Mather,  4  Wend.  229;  Poole  v.  Perritt,  1  Speers  128  ;  Chamberlain  v.  Wilson,  12 
Vt.  491 ;  The  People  v.  Rector,  19  Wend.  569 ;  Robinson  v.  Neal,  5  Monr.  212 ;  Lister 
V.  Boker,  6  Black  439 ;  The  People  v.  Bodine,  1  Denio  28 1 ;  Henry  v.  Salina  Bank, 
1  Comst.  83.  But  see  Richman  v.  The  State,  2  Greene  532 ;  Floyd  v.  Tlie  Slate, 
7  Tex.  215.  He  cannot  be  compelled  to  answer  as  to  any  one  act,  the  constant 
repetition  of  which  would  amount  to  a  statute  offence  :  French  v.  Venneman,  14 
Ind.  282.  When  the  answer  to  a  question  in  the  direct  examination  would  not 
criminate,  but  the  questions  which  might  be  rightfully  put,  on  cross-examina- 
tion, to  test  the  truth  of  such  answer,  might  form  a  link  in  a  chain  of  evidence 
that  would,  it  was  held,  that  he  might  refuse  to  answer  :  Printz  v.  Cheency,  1 1 
Iowa  469.  Although  he  is  his  own  judge  as  to  whether  his  answer  would 
criminate  himself,  he  is  nevertheless  liable  to  an  action  by  the  party  for  a  re- 
fusal to  testify,  if  his  refusal  be  wilful  and  his  excuse  false  :  Warner  v.  Lucas, 
10  Ohio  336.  One  who  declines  to  answer  on  the  ground  that  the  answer  sought 
may  tend  to  criminate  liini,  must  state  under  oath  that  he  believes  that  would 
bo  the  tendency  of  the  answer  ;  and  after  that  answer,  it  is  for  the  Court  to  ■ 
decide  whetlnn'  tiio  question  will  have  tiiat  tendency  :  Kirschner  v.  State,  9  Wise. 
lii);  Slate  V.  Dujj'y,  15  Iowa  425.  A  witness  may  be  asked  as  to  his  testimony 
in  a  former  trial  :  McCabe  v.  Tirayton,  38  N.  Y.  196.     Though  the  case  may  be 


SELF-CRIMINATION — STATE    SECRETS.  41 

the  community.  Thus,  in  a  state  prosecution,  a  witness  cannot  be 
called  upon  to  disclose  the  names  of  those  to  whom  he  has  given 
information  of  practices  against  the  State,  whether  such  persons  be 
magistrates,  or  concerned  in  the  administration  of  government,  or  be 
merely  the  channel  through  which  information  is  communicated  to 
government.^  So  a  witness  was  not  allowed  to  answer  the  question, 
whether  he  had  delivered  a  short-hand  note  to  an  under  secretary  of 
state ;'  and  so  it  was  held,  that  an  officer  from  the  Tower  of  London 
could  not  be  examined  as  to  the  accuracy  of  a  plan  of  the  Tower 
which  was  produced.™  Upon  the  same  ground,  *an  official  ^ 
communication  between  the  governor  of  a  colony  and  the  *-  -' 
law  officers  there,  relating  to  the  state  of  the  colony,  cannot  be  dis- 
closed." So  it  seems  that  the  orders  given  by  the  governor  of  a 
foreign  colony  to  a  military  officer  acting  under  his  command,  ought 
not  to  be  produced."     The  same  objection  applies  to  letters  written 

"  R.  V.  Wafson,  2  Starkie's  C.  (3E.  C.  L.  R.)  135  ;  and  a  note  from  Ilardi/s 
case,  by  Ahbott,  J.,  ib.  136  ;  and  Lord  Ellenborough's  observations  as  to  Sto7ie^s 
case,  ib.  137  ;  24  Howell's  State  Tr.  753. 

'  32  Howell's  State  Tr.  100  ;  see  also  De  Berenger^s  case,  Gurney's  Rep.  344. 

"  R.  V.  Watson,  2  Starkie's  C.  (3  E.  C.  L.  R.)  148. 

"  Wyatt  V.  Gore,  Holt's  C.  (3  E.  C.  L.  R.)  299. 

"  Cooke  V.  Maxwell,  2  Starkie's  C.  (3  E.  C.  L.  R.)  185.  Tne  document  was 
there  called  for,  in  order  to  prove  that  the  plaintiff's  factory  had  been  destroyed 


otherwise  when  a  question  is  put  on  cross-examination,  in  order  generally  to 
degrade  and  disgrace  the  witness,  yet  when  a  question  having  such  tendency 
is  part  of  an  examination  in  chief,  and  its  answer  is  essential  to  the  case  of  the 
party  bond  fide  putting  it,  the  Court  will  compel  an  answer,  when  it  will  not 
expose  the  witness  to  a  criminal  prosecution  :  Keller's  case,  1  Whart.  Dig.  726. 
When  a  witness  called  to  establish  a  defence  of  usury  declines  to  testify,  on  the 
ground  that  his  evidence  may  expose  him  to  an  indictment  or  subject  him  to  a 
penalty,  and  it  appears  that  the  statute  of  limitation  has  barred  all  prosecu- 
tions, the  Court  is  bound  to  pronounce  against  his  claim  to  exemption :  Close  v. 
Olney,  1  Denio  319  ;  Banlc  of  Salina  v.  Henry.  2  Denio  155,  3  Denio  593, 
1  Comst.  83;  Weldon  v.  Burd,  12  HI.  374;  Floyd  v.  The  State,  7  Tex.  215. 
There  is  no  legitimate  inference  of  guilt  from  the  refusal  to  answer,  upon  which 
the  jury  can  act :  Carno  v.  Litchfield,  2  Mich.  340  ;  Ncircomh  v.  State,  37  Miss.  383. 
A  liability,  however,  to  a  civil  action  or  pecuniary  loss  will  not  privilege  ; 
Bull  V.  Loveland,  10  Pick.  9 ;  Hays  v.  Richardson,  1  Gill  &  Johns.  366;  Tancey 
V.  Kemp,  4  Har.  &  Johns.  348 ;  Naylor  v.  Semmes,  4  Gill  &  Johns.  273  ;  Copj) 
V.  TJpham,  3  N.  H.  159  ;  Baird  v.  Cochran,  4  S.  &  R.  397  ;  Commomvealth  v. 
Thurston,  7  J.  J.  Marsh.  62 ;  Alexander  v.  Knox,  7  Ala.  503  ;  Judge  of  Probate 
v.  Green,  1  How.  (Miss.)  146  ;  Zollikofer  v.  Tttrney,  6  Yerg.  297  ;  Loumey  v. 
Ferham,  2  Appl.  235;  Conover  v.  Bell,  6  Monr.  157;  Stevens  v.  Whitcomh,  16 
Vt.  121  ;  Matter  of  Kip,  1  Paige  601  ;  Stewart  v.  Turner,  3  Edw.  Ch.  458  ;  Nass 
V.  Van  Swearingen,  7  S.  &  R.  192  ;  Ralph  v.  Brown,  3  W,  &.  S.  400. 


42  EXCLUDING     PRINCIPLES. 

by  a  secretary  of  state  to  a  person  acting  under  his  authority  ;''  and, 
as  it  seems,  to  minutes  taken  before  the  privy  council.** 

The  principle  does  not  exclude  a  communication  which,  although 
made  to  an  official  person,  is  not  made  in  the  discharge  of  any  public 
duty/^ 

in  consequence  of  orders  from  the  defendant ;  and  it  was  held  that  althouj^h  on 
principles  of  public  convenience  the  document  could  not  be  read,  the  effect  was 
the  same  as  if  the  document  had  not  existed,  and  that  the  witness  might  be 
asked  whether  AA'hat  had  been  done  bad  not  been  done  by  order  of  the  defendant. 
P  2  Starkie's  C.  (3  E   C.  L.  R.)  185.  / 

'^  6  St.  Tr.  281,  Layer's  case.  Where  the  commander-in-chief  directed  the 
defendant,  a  major-general,  with  six  other  officers,  to  inquire  into  the  conduct 
of  a  plaintiff,  and  to  report  the  opinion  of  the  officers,  and  the  plaintiff  brought 
an  action  for  an  alleged  libel  contained  in  that  report,  and  the  secretary  of  the 
commander-in-chief  attended  with  the  minutes  of  the  report,  the  Court  refused 
to  allow  it  to  be  read.  Home  v.  Bentinck,  2  B.  &  B.  (6  E.  C.  L.  R.)  130.  So 
official  communications  between  an  agent  of  government  and  a  secretary  of 
state  :  Anderson  v.  Sir  W.  Hamilton,  2  B.  &  B.  (6  E.  C.  L.  R.)  156  ;  and  be- 
tween the  East  India  Company  and  the  Board  of  Control :  Smith  v.  East  India 
Company,  1  Phill.  50,  are  also  privileged.  For  further  observations  on  this 
subject,  see  tit.  Witness — Confidential  Communication. 

"■  Blake  v.  PiJford,  I  M.  &  Rob.  198  ;  which  was  the  case  of  a  letter  written 
by  a  private  person  to  the  secretary  of  the  postmaster-general,  complaining  of 
the  conduct  of  the  guard  of  a  mail. 

1  An  officer,  by  whom  a  person  was  apprehended,  is  not  bound  to  disclose  the 
name  of  a  person  from  whom  he  received  the  confidential  information  which 
led  to  the  prisoner's  detection :  United  States  v.  Moses,  4  Wash.  C.  C.  Rep.  726. 
But  he  is  bound  to  answer  whether  A.  B.  (the  person  in  whose  house  the  de- 
fendant was  apprehended  on  a  charge  of  forgery,  and  where  he  was  discovered 
at  a  table  with  bank  notes)  had  not  told  him  that  if  he  v.'ould  come  to  his  house 
on  a  certain  day,  he  would  have  the  prisoner  there  •,  for  the  defendant  might 
repel  the  presumption  of  guilt  against  him  by  showing  that  he  was  at  the  house 
in  consequence  of  the  insidious  invitation  of  the  owner  of  it:  Ibid.;  S.  P., 
United  States  v.  Ci-aig,  4  Wash.  C.  C.  Rep.  729.  The  governor,  to  whom  a  depo- 
sition has  been  addressed,  preferring  accusations  against  a  person  in  office, 
must  exercise  his  own  judgment  with  respect  to  the  propriety  of  producing  the 
writing;  a  subpoena  duces  tecum  will  not  be  issued  against  him  for  it:  Gray  v. 
Pentland,  2  S.  &  R.  23.  G. 

It  is  intimated  by  the  Court,  in  the  case  of  the  U.  S.  v.  Burr,  that  the  Presi- 
dent of  the  United  States  is  not  obliged  to  disclose  communications  made  to  him 
in  his  official  capacity,  if  the  public  good  requires  that  they  should  be  sup- 
pressed :  1  Rob(!rtson's  Rcj).  of  Burr's  trial,  18(),  187.  So  in  Marbury  v.  Madi- 
son, 1  Cranch  144,  it  was  held  that  a  former  secretary  of  state  was  not  obliged 
to  disclose  facts  wiiicli  had  been  communicated  to  him  in  confidence,  while  in 
office.  M. 

This  privilege  lias  been  extended  to  a  private  prosecutor,  not  in  office:  Thi 
Stale  v.  Soper,  4  Shcp.  2y;>. 


MEDIATEEVIDENCE.  43 

*CHAPTER  III.  [*43] 

MEDIATE  AND  SECONDARY  EVIDENCE. 

Next,  as  to  the  admissibility  of  evidence  derived  not  immediately 
from  those  who  have,  or  are  supposed  to  have,  actual  knowledge 
of  the  fact,  but  through  the  testimony  of  one  or  more  other  wit- 
nesses. 

Such  testimony  is  in  general  of  so  inferior  a  nature  as  to  be 
admissible  only  in  cases  of  urgency,  on  the  failure  of  better  evidence, 
and  under  the  sanction  of  particular  circumstances,  which  warrant 
its  admissibility,  but  in  some  instances  is  admissible  without  any 
proof  of  the  failure  of  better  evidence.  Thus  general  reputation  is 
in  many  instances  receivable,  although  it  may  rest  on  no  other  foun- 
dation than  what  the  witnesses  may  have  heard  from  others.* 

General  reputation  is  the  general  result  or  conclusion  formed  by 
society  as  to  any  public  fact  or  usage,  by  the  aid  of  the  united 
knowledge  and  experience  of  its  individual  members  :  such  a  general 
concurrence  and  coincidence  of  opinion  on  facts  known  to  many, 
affords  a  reasonable  degree  of  presumption  that  their  conclusion  is 
correct ;''  and  therefore  in  particular  cases,  where  the  fact  is  of  a  pub- 
lic nature,  general  reputation  is  admissible  evidence  to  prove  it.  But 
as  it  would  not  be  necessary,  and  otherwise  would  not  be  practicable, 
to  examine  the  whole  body  of  society  as  to  the  prevalence  of  general 
reputation  on  any  particular  fact,  it  is  suflBcient  to  call  individual 
witnesses,  a  portion  of  society,  Avho  can,  under  the  sanction  of  an 
oath,  and  subject  to  cross-examination,  pledge  their  personal  know- 
ledge that  such  reputation  exists. 

*It  is  observable  that,  in  one  respect,  such  evidence  can 

.  ,  r*441 

scarcely  be  considered  as  forming  an  exception  to  the  general    ^       J 

rule  which  requires  the  sanction  of  an  oath  and  the  opportunity  to 
cross-examine ;  for  tiie  witnesses  are  called  to  prove  what  they  actu- 
ally know,  viz.,  that  such  a  reputation  exists  :  they  are  sworn  and 
subject  to  cross-examination,  and  the  very  nature  of  such  evidence 
excludes  any  more  solemn  sanction. 

The  particular  subjects  to  which  such  evidence  is  applicable  re- 
quire further  consideration. 

It  is  to   observed  that  many  facts,  from  their  very  nature,  either 

*  See  tit.  Custom — Marriage — Pedigree — Prescripion. 

''  See  Du  Bost  v.  Beresford,  2  Camp.  512;  per  Gibbs,  C.  J.,  Gurr  v.  Eutfvn, 
Holt,  Ca.  (3  E.  C.  L.  R.)  327;  Oliver  v.  Bartlett,  1  B.  &  B.  (5  E.  C.  L.  R.)  26'J. 


44  MEDIATEEVIDENCE. 

absolutely  or  usually  exclude  direct  evidence  to  prove  them,  being 
such  as  are  in  ordinary  cases  imperceptible  by  ihe  senses,  and  there- 
fore incapable  of  the  usual  means  of  proof.  Among  these  are  ques- 
tions of  pedigree  or  relationship,  character,  prescription,  custom, 
boundary,  and  the  like.  Such  facts,  some  from  their  nature,  and 
others  from  their  antiquity,  do  not  admit  of  the  ordinary  and  direct 
means  of  proof  by  living  witnesses;  and,  consequently,  resort  must 
be  had  to  the  best  means  of  proof  which  the  nature  of  the  cases 
affords.  Now  the  knowledge  of  facts  of  this  description  consists 
either  in  the  knowledge  and  recollection  of  that  part  of  society  which 
has  had  the  means  of  observing  them,  or  in  the  traditionary  declara- 
tions of  those  who  were  likely  to  have  possessed  a  knowledge  on  the 
subject,  derived  either  from  their  own  observation,  or  the  information 
of  others  ;  or,  lastly,  in  questions  of  skill  and  judgment,  the  know- 
ledge of  the  relation  must  be  derived  from  those  who  are  possessed  of 
the  proper  qualifications  for  forming  a  conclusion  on  the  subject.  The 
character  of  a  particular  individual  in  society  is  formed  by  society 
from  their  experience  and  observation  of  the  conduct  of  the  indi- 
vidual ;  and  here  reputation  is  not  so  much  a  circumstance  from 
which  the  character  of  the  individual  is  to  be  presumed,  as  the  very 
fact  itself,  proved  by  the  direct  evidence  of  witnesses  who  constitute 
part  of  that  society.  The  knowledge  of  the  existence  of  a  particular 
r*A.r-\  *public  custom  does  not  reside  peculiarly  in  the  breast  of  any 
one  individual  whatsoever,  but  in  the  opinions  and  conclusions 
which  society,  or  some  indefinite  part  of  it,  have  collected  from  actual 
observation  and  experience. 

In  the  case  of  pedigree,  the  nearest  relation,  even  that  of  parent 
and  child,  can  seldom  be  proved,  after  the  death  of  the  parents,  by 
direct  evidence ;  and  no  knowledge  upon  the  subject  exists  except 
that  which  is  inferred  from  circumstances,  or  derived  from  the 
hearsay  testimony  of  those  who,  from  their  intimacy  with  the  family, 
possessed  peculiar  means  of  knowledge.  The  circumstances  that  the 
parents  cohabited  as  husband  and  wife,  acknowledged  and  addressed 
each  other  in  society  as  such  ;  that  they  recognized  and  educated  chil- 
dren as  their  own,  and  introduced  them  to  the  world  on  a  variety  of 
occasions  as  their  legitimate  offspring  ;  that  a  pedigree  was  hung  up  in 
the  family  mansion,  stating  the  different  degrees  of  relationj^hip  of  the 
members  of  the  family;  that  similar  entries  were  made  in  the  family 
bible;  that  a  monument  or  tombstone  was  exhibited  to  the  public, 
announcing  a  re-lation  between  the  deceased  and  the  surviving,  or 
deceased  and  late,  njcmbei's  of  a  family  ;   all  such  circumstances  are 


REPUTATIOX.  45 

either  strictly  facts,  or  are  solemn  and  deliberate  declarations  accom- 
panying facts,  and  partaking  of  the  nature  of  facts,  which,  in  the 
absence  of  all  suspicion  of  fraud,  afford  the  strongest  presumptions 
that  the  parties  really  did  stand  in  the  relative  situation  of  husband 
and  wife,  parents  and  children,  or  other  degree  of  kindred ;  for  it  is 
improbable  that  such  circumstances  should  have  been  acted  with  a 
view  to  deceive,  particularly  in  a  manner  so  open  and  public  as  to 
render  the  fraud  liable  to  immediate  detection.  From  such  circum- 
stances the  belief  is  formed,  by  those  who  are  acquainted  with  the 
family,  and  a  reputation  obtains  in  society  that  they  are  so  related ; 
for  reputation  seems  to  be  no  more  than  hearsay,  derived  from  those 
who  had  the  means  of  knowing  the  fact.  Hence  it  is  that  the  repu- 
tation may  exist  when  those  who  were  best  acquainted  with  *the 
fact  are  dead  ;  and  that  such  reputation  and  even  traditionary  L  J 
declarations  becomes  the  best,  if  not  the  only,  means  of  proof;  and 
when  they  are  derived  from  those  who  are  most  likely  to  know  the 
truth,  and  who  lay  under  no  bias,  or  influence  to  misrepresent  the 
fact,  they  afford  a  fair  and  reasonable  presumption  of  the  truth  of  the 
fact.i 

^  Pedigree  and  relationship,  marriage  and  death,  may  be  proved  by  general 
reputation:  Johnson  x.  Hotcard,  1  liar.  &  McHen.  281  ;  Pancoast  v.  Addison^  1 
Har.  &  Johns.  350;  Morgan  v.  Puniell,  4  Hawk?  95 ;  Ewing  v.  Savari/,  3  Bibb 
235  ;  Eivell  v.  The  State,  6  Yerg.  364 ;  Flowers  v.  Haralson,  Ibid.  494  ;  Stegall  v. 
Stegall,  2  Brock.  256  ;  Morton  v.  Barrett,  19  Me.  109;  CojJes  v.  Pierce,  7  Gill 
247  ;  Prince  v.  Stewart,  7  Tex.  175  ;  Watson  v.  Brewster,  1  Barr  381  ;  Crauford 
V.  Blackburn,  17  Md.  49  ;  Carries  v.  Crandall,  10  Iowa  377  ;  Webb  v.  Richardson, 
42  Yt.  465  ;  Eaton  v.  Tallmadge,  24  Wise.  217.  Hearsay  evidence  of  such  facts 
is  therefore  admissible  :  Jackson  v.  Boneham,  15  Johns.  226  ;  Strickland  v.  Poole, 
1  Dall.  14-,  Jackson  v.  Cooley,  8  Johns.  128;  Elliott  v.  Piersoll,  1  Pet.  328; 
Waldron  v.  Tuttle,  4  N.  H.  371 ;  Scott  v.  Ratcliffe,  5  Pet.  81 ;  Carter  v.  Buchanan, 
9  Ga.  539  ;  Wilson  v.  Brownlee,  24  Ark.  586.  Recitals  in  a  deed  more  than  thirty 
years  old  are  evidence  of  pedigree:  Bowser  v.  Cravener,  6  P.  F.  Smith  132.  But 
hearsay  evidence,  of  the  place  of  a  man's  birth  or  death,  is  inadmissible:  Inde- 
pendence v.  Pompton,  4  Ilals.  209  ;  Wilmington  v.  Burlington,  4  Pick.  174 ; 
Bi-ooks  v.  Clay,  3  A.  K.  Marsh.  545.  That  two  lived  together  in  a  state  of  con- 
cubinage can  never  be  proved  by  general  reputation :  Carrie  v.  Cumming,  26 
Ga.  690.  The  hearsay  evidence,  admissible  in  cases  of  pedigree,  is  limited  to 
those  connected  with  the  family  who  are  supposed  to  have  known  the  relation- 
ships existing,  and  such  hearsay  declarations  must  have  been  made  before  suit 
commenced:  Stein  v.  Bowman,  13  Pet.  209  ;  Jackson  v.  Browner,  IS  Johns.  37  ; 
Waldrow  v.  Tuttle,  4  N.  H.  371  ;  Chapman  v.  Chapman,  2  Coxe  347 :  Saunders 
V.  Fuller,  4  Humph.  516 ;  Greentoood  v.  Spillor,  2  Scam.  502 ;  Matter  of  Hall,  1 
Wall.  Jr.  85 ;  Copes  v.  Pearce,  7  Gill.  247  ;  Boudereau  v.  Montgomery,  4  Wash. 
C.  C.  Rep.  186 ;  Dussel  v.  Roe,  1  Wall.  Jr.  39.  To  let  in  the  declarations  of 
4 


46  MEDIATE     EVIDENCE. 

Again  :  upon  questions  of  fact,  to  which  antiquity  is  essential,  as 
of  prescription,  custom  and  boundary,  (and  also  of  pedigree,  where 
the  relationship  is  to  be  traced  through  a  remote  ancestor,)  the  evi- 
dence of  living  witnesses  is  of  little  avail,  except  as  to  the  observance 
of  the  right,  privilege  or  obligation,  in  modern  times;  for  any  know- 
ledge concerning  such  rights,  drawn  from  times  more  remote,  recourse 
must  be  had  to  reputation  and  tradition  ;  such  evidence  being  sup- 
ported by  proof  of  the  enjoyment  of  such  rights  and  privileges,  and 
of  acquiescence  in  them  in  more  recent  times.' 

On  these  grounds,  therefore,  general  reputation  is  admissible  evi- 
dence, as  affording  presumptions  upon  which  juries  are  to  exercise 
their  discretion  in  cases  of  this  nature.  Such  instances  have,  it 
seems,  been  regarded  as  anomalous,  and  as  forming  exceptioits  to  the 
general  rule  which  has  already  been  noticed,  viz  ,  that  mere  naked 
declarations  are  too  vague,  uncertain  and  fallacious,  to  afford  sufficient 
presumptions  for  the  consideration  of  a  jury.*  Such  evidence  is  at 
all  events  warranted  by  the  necessity  of  the  case.  The  particular 
objection  which  excludes  mere  hearsay  in  general  does  not  apply  to 
those  cases  which  are  of  a  public  nature,  which  may  be  presumed  to 
be  matter  of  public  notoriety,  as  in  the  instance  of  public  prescrip- 
tions, customs  and  character,  and  where  reliance  is  placed  not  on  the 
credit  due  to  the  assertion  of  a  single  individual,  but  is  sanctioned  by 
the  concurrent  opinion  and  assent  of  indefinite  numbers  ;  in  such  cases 

«  Per  Lord  Ellenborough,  C.  J.,  Weels  v.  Sparke,  1  M.  &  S.  (28  E.  C.  L.  R.) 
686. 

third  persons  in  case  of  pedigree,  it  must  be  shown  that  they  are  dead  :  White  v. 
Strother,  11  Ala.  720  ;  Covert  v.  Hertzog,  4  IJarr  145  ;  Fuller  v.  Nutz,  5  S.  &  R. 
251.     See  post,  p.  188,  note. 

*  lioundiiries  may  be  proved  by  reputation,  and  it  is  not  confined  in  the  United 
States  to  boundaries  Vjetween  manors  and  parishes,  but  extends  to  private  estates, 
and  the  lines  of  old  surveys :  Smith  v.  Howell,  2  Litt.  159  ;  Bufoll  v.  Stocking, 
8  Conn.  236  ;  Boardman  v.  Reed,  6  Pet.  328  ;  Wooster  v.  Butler,  13  Conn.  309  ; 
Nieman  v.  Ward,  1  W.  &.  S.  68  ;  Ellicott  v.  Pearl,  1  McLean  206 ;  Caiifman  v. 
Cedar  Spring  Congregation,  6  Binn.  59  ;  Wolf  v.  Wyeth.  11  S.  &  R.  149  ;  Hamil- 
ton V.  Minor,  2  Ibid.  70;  McCloud  v.  Mynalt,  2  Cald.  163;  Sullivan  Granite  Co. 
V.  Gordon,  57  Me.  520.  But  the  declarations  of  those  who  could  themselves  be 
had  as  witnesses  are  not  admissible  :  Lamar  v.  Minter,  13  Ala.  31  ;  Buchanan  v. 
Moore,  IDS.  &  R.  275.  Possessions  of  ancient  date,  of  which  there  can  be  no 
living  witnesses,  and  of  which  no  written  evidence  can  be  presumed  to  exist,  may 
also  be  thus  eKtal)lishcd  :  Casy  v.  Inloes,  1  Gill  430.  Reputation  is  not  admitted 
upon  (|ueKtions  of  freedom  :  Walls  v.  Helmsley,  4  liar.  &  Johns.  243  ;  Gregory  v. 
Buugli,  4  Rand.  Gil.  Contra,  Mahoncy  v.  Ashlon,  4  Har.  &  McIIeu.  63,  295; 
Chancellor  v.  Milly,  9  Dana  23.     Se^  post,  p.  186,  note  1. 


REPUTATION.  46 

a  presumption  exists  that  the  truth  of  the  fact  is  known  and  faithfully 
communicated. 

Hence,  therefore,  common  reputation  is  evidence  to  *prove, 
1st,  a  man's  character  in  society  f  2(lly,  reputation,  and  (as  ^  J 
■will  afterwards  be  seen)  traditionary  declarations  are  evidence  to  prove 
a  pedigree,  including  the  state  of  a  family  as  far  as  regards  the  rela- 
tionship of  its  different  members,  their  births,  marriages  and  deaths  ; 
3dly,  reputation  and  traditionary  declarations  are  evidence  to  prove 
certain  prescriptive  or  customary  rights  and  obligations,  and  matters 
of  public  notoriety.  But  inasmuch  as  the  reception  of  such  evidence 
is  founded  upon  the  supposition  that  the  persons  from  whom  it  is 
derived  possessed  the  means  of  knowledge ;  and  since  such  evidence 
is  in  its  own  nature  very  weak,  unless  it  be  supported  by  other  cir- 
cumstances,® the  following  sanctions  appear  to  be  necessary  to  war- 
rant a  presumption  from  such  evidence. 

First,  in  order  to  warrant  such  a  presumption,  the  fact  to  which  the 
reputation  or  tradition  applies,  must  in  general  be  of  a,  public  nature  ; 
for  otherwise  it  cannot  be  presumed  that  the  persons  from  whom  the 
knowledge  is  derived  possessed  the  means  of  knowledge,  or  if  they  did 
possess  the  means,  that  their  attention  and  observation  were  attracted 
to  it :  and  therefore  such  evidence  is  admissible  in  cases  of  character, 
public  prescriptions,  and  customs  relating  to  manors,^  and  parishes, 
and  of  rights  of  common,  public  boundaries  and  highways.^  Such 
evidence  is  also  received  with  respect  to  the  existence  of  a  modus, ""  or  a 
right  to  free  warren,'  because,  although  they  are  in  strictness  private 
rights,  yet  they  affect  a  great  number  of  occupiers  within  a  district.'' 

So  where  the  defendant  in  trespass  pleaded  a  prescriptive  right  of 
common  over  the  locus  in  quo,  at  all  times,  for  his  cattle  levant  and 
couchant,  and  the  plaintiff,  in  his  replication,  prescribed  in  right  of 
his  messuage  to  use  the  *locus  in  quo  for  tillage  with  corn,  r^j^o-i 
and  until  the  taking  in  of  the  corn  to  hold  and  enjoy  the  same 
in  every  year,  and  traversed  the  defendant's  prescription,  on  which 
issue  was  joined,  it  was  held'  that  many  persons  besides  the  defendant 

"*  See  tit.  Character. 

«  Per  Lord  Ellenborough,  1  M.  &  S.  (28  E.  C.  L.  R.)  686. 

^  Barnes  v.  Mawson,  1  M.  &  S.  (28  E.  C.  L.  R.)  77. 

s  1  M.  &  S.  (28  E.  C.  L.  R.)  686  ;  6  M.  &  W.  234 ;  see  tit.  Custom— Prescrip- 
tion, &c. 

"  2  Ves.  512  ;  Gwill.  854.  *  13  M.  &  W.  332. 

^  Per  Dampier,  J.,  1  M.  &  S.  (28  E.  C.  L.  R.)  691  ;  see  tit.  Tithes. 

'  Weeks  v.  Sparke,  1  M.  &  S.  (28  E.  C.  L.  R.)  679  ;  Pritchard  v.  Powell,  10  Q,. 
B.  (59  E.  C.  L.  R.)  589. 


48  MEDIATE    EVIDENCE. 

liaving  a  right  of  common  ever  the  hens  in  quo,  evidence  of  reputa- 
tion, as  to  the  right  claimed  by  the  plaintiff,  was  admissible,  a 
foundation  having  been  first  laid,  by  evidence  of  the  enjoyment  of 
such  right.  But  it  seems  to  be  now  settled,  although  the  question 
was  long  sub  judice,  that  general  evidence  of  reputation  is  not  admis- 
sible in  the  case  of  a  private  prescription  or  other  claim.  In  the 
case  of  Morewood  v.  Wood,^  the  question  was  whether  general 
evidence  of  reputation  as  to  a  prescriptive  right  of  digging  stones  on 
the  lord's  waste,  annexed  to  a  particular  estate,  was  admissible ;  and 
the  Judges  were  divided  upon  it.  In  Outram  v.  Moretvood,^  Lord 
Kenyon  said,  "  that  although  a  general  right  might  be  proved  by 
traditionary  evidence,  a  particular  fact  could  not."  There  the  ques- 
tion was,  whether  Cow  Close  had  been  part  of  the  estate  of  Sir  J. 
Zouch,  out  of  which  certain  rents  and  coals  had  been  reserved ;  and 
the  Court  held  that  the  fact  could  not  be  proved  by  entries  made  by 
a  third  person  deceased,  in  his  books  of  receipts  of  rents  from  his 
tenant,  such  entries  being  considered  as  no  more  than  a  declaration 
of  the  fact  by  such  third  person ;  which  was  different  from  entries  by 
a  steward,  who  thereby  charged  himself  with  the  receipt  of  money. 
In  Doe  V.  Thomas,°  where  in  an  action  of  ejectment  the  lessor  of  the 
plaintiff  claimed  as  tenant  in  tail  under  the  will  of  A.  who  gave  £. 
his  son  an  estate  for  life,  and  the  defendant  claimed  as  the  devisee  of 
B.,  the  question  was,  whether  the  land  in  dispute  was  part  of  the 
entailed    estate,   or    had  been  purchased  by  i?. ;    it  was  held  that 

evidence  of  ^reputation  that  the  land  had  been  purchased  of 

r*491  •  ■  • 

*-       -^    J.  S.  by  A.   was  inadmissible.^     And  although   traditionary 

reputation  is  evidence  of  boundary  between  two  parishes  and  manors,'' 

it  is  not  evidence  of  boundary  between  two  private  estates."^  ^     Upon 

the  principle  that  it  is  a  matter  of  general  and  public  notoriety,  a 

"  32  Geo.  III.,  B.  R.  14  East  327,  in  note. 

°  5  T.  E.  123.  0  14  East  323. 

P  In  The  Bishop  of  Meath  v.  Lord  Belfield,  B.  N.  P.  295,  it  was  held  that  evi- 
dence of  reputation  was  admissible,  in  quare  impedit,  to  prove  that  one  Knight 
had  been  in  by  the  presentation  of  one  from  whom  the  defendant  claimed  ;  but 
in  Re  Eriswcll,  3  T.  R.  723,  Lord  Kenyon  denied  that  this  case  was  law. 

1  Nicholls  v.  Parker,  Ex.  Summer  Ass.  1805,  cor.  Le  Blanc,  J.,  Taunton,  1795  ; 
B.  V.  Parish  of  Hammersmith,  Sitt.  after  Hil.  1776  ;  Down  v.  Hale,  cor.  Law- 
rence, see  14  East  331  ;  Peake,  Ev.  App.  33  ;  Ireland  v.  Powell,  Salop  Sum,  Ass. 
Peake,  Ev.  App.  33  ;  Brisco  v.  Lomax,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  198. 

■■  Clothier  v.  Chapman,  14  East  331,  in  the  note. 

'  That  this  is  not  the  received  law  in  the  United  States,  see  the  cases  cited  in 
the  note  2,  {>.  40,  ante. 


REPUTATION.  49 

particular  historical  fact  may,  as  it  seems,  be  proved  by  reputation  of 
the  fact,  and  (as  falling  within  the  scope  of  such  evidence)  by  a  gen- 
erally received  historical  account  of  it.^  ^ 

2dly.  Neither  reputation  nor  traditionary  declarations  are  admis- 
sible as  to  a  particular  fact.'  Evidence  of  reputation  upon  general 
points  is  receivable,  because  all  mankind  being  interested  in  them,  it 
is  natural  to  suppose  that  they  may  be  conversant  with  the  subjects, 
and  they  should  discourse  together  about  them."  all  having  the  same 
means  of  information  ;  but  this  does  not  apply  to  particular  facts, 
which  may  not  be  notorious,  which  may  be  misrepresented  or  misun- 
derstood, and  which  may  have  been  connected  with  other  facts  by 
which  their  effect  would  be  limited  and  explained.  Such  evidence 
would  obviously  be  open  to  all  the  uncertainty,  and  liable  to  all  the 
objections  incident  to  mere  hearsay  evidence,  and  is  therefore  of  too 
slight  a  nature  to  support  any  presumption.  And,  therefore,  upon  a 
question  of  modus,  evidence  of  the  declaration  of  an  old  person,  since 
deceased,  that  so  *much  per  acre  had  always  been  paid  in  lieu 
of  tithes,  would  be  good  evidence  as  to  reputation  ;  but  a  de-  '-  -• 
claration  by  such  a  person  that  he  paid  so  much  in  lieu  of  tithes  would 

^  B.  N.  P.  248;  1  Salk.  282  ;  1  Vent.  151  ;  Skin.  14,  623  ;  and  see  Tkonas  v. 
JenJdns,  6  Ad.  &  E.  (33  E.  C.  L.  R.)  525. 

*  Per  Lord  Kenyon,  Outram  v.  Morewood,  5  T.  R.  123. 
"  Fer  Lord  Kenyon,  see  Morewood  v.  Wood,  14  East  329. 

^  Historical  facts  of  general  and  public,  notoriety  may  be  proved  by  reputation, 
and  that  reputation  may  be  established  by  historical  works  of  known  character 
and  accuracy.  But  evidence  of  this  sort  is  confined  in  a  great  measure  to  ancient 
facts  which  do  not  pre-suppose  better  evidence  in  existence  ;  and  when  from  the 
nature  of  the  transaction  or  the  remoteness  of  the  period,  or  the  public  and  gen- 
eral reception  of  the  facts,  a  just  foundation  is  laid  for  general  confidence.  The 
work  of  a  living  author  who  is  within  the  reach  of  the  process  of  the  court  can 
hardly  be  deemed  of  this  nature.  He  may  be  called  as  a  witness  ;  he  may  be 
examined  as  to  the  sources  and  accuracy  of  his  information  ;  and  especially  if 
the  facts  which  he  relates  are  of  a  recent  date,  and  may  be  fairly  presumed  to 
be  within  the  knowledge  of  many  living  persons,  from  whom  he  has  derived  his 
materials,  there  would  seem  to  be  cogent  reasons  to  say  that  his  book  was  not, 
under  such  circumstances,  the  best  evidence  within  the  reach  of  the  parties : 
Morris  v.  Harmer^s  Heirs,  7  Pet.  554.  Events,  connected  with  and  forming 
part  of  the  public  history  of  the  country,  courts  will  judicially  notice  :  Humphrey 
v.  Burnside,  4  Bush  215.  They  will  take  judicial  notice  of  the  existence  of  the 
civil  war  of  1861-5,  and  of  the  facts  of  public  history  connected  with  its  origin 
and  progress  :  Cuyler  v.  Ferrill,  1  Abb.  U.  S.  160.  Volumes — as  the  American 
State  Papers — published  under  the  authority  of  Congress,  are  competent  evi- 
dence :  Doe  V.  Boe,  13  Fla.  602. 


50  MEDIATE     EVIDENCE. 

not  be  admissible,  since  it  is  a  particular  fact/  So  in  those  cases 
where  evidence  of  perambulations  is  admitted,  it  is  in  the  nature  of 
hearsay  evidence,  not  of  particular  acts  done,  as  that  such  a  turf  was 
dug,  or  such  a  post  put  down  in  a  particular  spot ;  but  it  is  evidence 
of  the  ambit  of  any  particular  place  or  parish,  and  of  what  the  per- 
sons accompanying  the  survey  have  been  heard  to  say  and  do  on  such 
occasion/ 

3dly.  If  the  reputation  or  tradition  relate  to  the  exercise  of  a  right 
of  privilege,  it  should  be  supported  by  proof  of  acts  of  enjoyment  of 
such  right  or  privilege  within  the  period  of  living  memory  ;^  and  when 
that  foundation  has  been  laid,  then,  inasmuch  as  there  cannot  be  any 
witnesses  to  speak  to  acts  of  enjoyment  beyond  the  time  of  living 
memory,  evidence  is  to  be  admitted  from  old  persons  conversant  with 
the  neighborhood  where  the  right  is  claimed,  of  what  they  have  heard 
other  old  persons,  who  were  in  a  situation  to  know  what  the  rights 
were,  say  concerning  them/ 

Another  class  of  evidence,  which  is  admissible,  though  the  usual 
tests  are  inapplicable,  consists  of  declarations  made  by  one  of  the 
parties  to  a  suit,  in  the  nature  of  a  confession  or  admission  contrary 
to  his  own  interest.  Whatever  a  party  voluntarily  admits  to  be  true, 
though  the  admission  be  contrary  to  his  interest,  may  reasonably  be 
taken  for  the  truth.  The  same  rule  it  will  be  seen  applies  to  admis- 
sion by  those  who  are  so  identified  in  situation  and  interest  with  a 
party  that  their  declarations  may  be  considered  to  have  been  made 
bv  himself.''  *As  to  such  evidence,  the  ordinary  tests  of 
L  -■  truth  are  properly  dispensed  with  ;  they  are  inapplicable  :  an 
oath  is  administered  to  a  witness  in  order  to  impose  additional  obliga- 
tion on  his  conscience,  and  so  to  add  weight  to  his  testimony  ;  and  he 
is  cross-examined  to  ascertain  his  means  of  knowledge,  as  well  as  his 
intention  to  speak  the  truth.  But  where  a  man  voluntarily  admits  a 
debt  or  confesses  a  crime,  there  is  little  occasion  for  confirmation ; 
the  ordinary  motives  of  human  conduct  are  sufficient  warrants  for 
belief.^ 

^  Ilarivood  v.  Sims,  1  Wight  112. 

y  Per  Lord  Ellenborough,  I  M.  &  S.  (28  E.  C.  L.  K.)  687. 
'  See  the  Qbservations  of  the  Judges  in  Weeks  v.  Parke,  1   M.  &  S.  (28  E.  C. 
L.  R.)  679 ;  and  of  Grose,  J.,  5  T.  R.  32. 

="  1  M.  &  S.  (28  E.  C.  L.  R.)  679 ;  14  East  330  ;  12  East  65. 
''  See  Vol.  II.  tit.  Admissions. 

'  In  general  the  declarations  of  a  party  to  tlie  record  in  interest  are  admissi- 
ble, and  in  the  ah^cnce  of  fraud,  if  the  parties  liavc  a  joint  interest  in  the  matter 


REPUTATION.  51 

There  is  also  another  species  of  hearsay  evidence,  which   in  some 
instances  may  be  referred  to  this  class.     Where  a  declaration  accom- 


in  suit,  an  admission  made  by  one  is  in  general,  evidence  against  all :  Black  v. 
Lamb,  1  Beas.  108.  He  is  not  bound  by  or  held  to  admit  as  true  every  state- 
ment made  by  his  witness  during  the  trial,  because  he  does  not  deny  or  contra- 
dict them  at  the  time:  Wilkins  v.  Stedger,  22  Cal.  231.  He  may  show  that 
admissions  made  l)y  him  were  untrue  or  made  under  a  mistake,  unless  another 
has  acted  on  them  so  as  to  estop  him  :  Ra;/  v.  Bell,  24  111.  444.  The  silence  of 
a  party,  to  whom  a  note  purporting  to  be  signed  by  him  was  shown,  with  a  re- 
quest to  pay  it,  is  competent  evidence  that  his  signature  is  genuine,  or  if  not 
genuine  of  his  assent  to  be  bound  by  it :  Corson  v.  Paul,  41  N.  H.  24  ;  Greenfield 
Bank  v.  Craft,  2  Allen  269.  So  a  declaration  made  in  the  presence  of  a  party 
and  not  denied  :  Gihneij  v.  Monhaij,  34  N.  Y.  301  ;  Lanergaji  v.  People,  30  N.  Y.  39. 
Declarations  by  a  minister  in  the  pulpit  are  not  evidence  in  his  own  favor 
against  the  congregation:  Johnson  \.  Trinity  Church,  11  Allen  123.  When  a 
party  refers  to  a  third  person  for  information  relating  to  the  issue,  it  makes  the 
declaration  of  such  thirJ  person  evidence  :  Allen  v.  Killinger,  8  Wall.  480,  The 
admissions  of  a  married  woman  are  competent  evidence  in  an  action  by  her 
trustee  for  her  use  :  M'Lemon  v.  Nuckells,  1  Ala.  Sel.  Cas.  591. 

As  to  admissions  of  partners,  see  Fail  v.  M' Arthur,  31  Ala.  26  ;  Smitha  v. 
Cureton,  Ibid.  652  ;  Rich  v.  Flanders,  39  N.  H.  304  ;  Hunter  v.  Hubbard,  26 
Tex.  537  ;  Rotan  v.  Nicholls,  22  Ark.  214  ;  Berrg  v.  Lathrop,  24  Ibid.  12. 

As  to  admissions  by  partner  after  dissolution:  Carry  v.  Kurts,  33  Miss.  24; 
American  Iron  Mountain  Co.  v.  Evans,  27  Mo.  552  ;  Miller  v.  Niemerick,  19  HI. 
172  ;  Rich  V.  Flanders,  39  N.  II.  304;  Pennoyer  v.  David,  8  Mich.  407  ;  Haggv. 
Orgill,  10  Cas.  344  ;  Nalle  v.  Gates,  20  Tex.  315  ;  Flowers  v.  Helm,  29  Mo.  324  ; 
Winsloiv  V.  Newlin,  45  111.  145. 

The  whole  of  the  conversation  in  which  an  admission  is  made  may  be  given 
in  evidence:  Hudson  v.  Howlett,  S2  Ala.  478  ;  Thrall  v.  Smiley,  9  Cal.  529; 
State  v.  Morton,  28  Mo.  530 ;  Perego  v.  Purdy,  1  Hilt.  269  ;  Bearss  v.  Copley,  10 
N.  Y.  93;  Doonan  v.  Mitchell,  26  Ga.  472 ;  Scruggs  v.  Bibb,  33  Ala.  481  ;  Veiths 
V.  Hagge,  8  Clarke  163  ;  People  v.  Murphy,  39  Cal.  52 ;  Jones  v.  Fort,  36  Ala. 
449  ;  Kammell  v.  Bassett,  24  Ark.  499  ;  Hamsher  v.  Kliyie,  7  P.  F.  Smith  397. 
That  a  witness  did  not  hear  the  whole  conversation  is  no  reason  for  excluding 
what  he  did  hear  :  Mays  v.  Dearer,  1  Clarke  216  ;  Williams  v.  Keyser,  11  Fla. 
234.  In  an  action  on  the  case  for  obstructing  a  private  way,  it  is  not  error  to 
reject  evidence  of  an  opinion  expressed  by  one  of  the  parties  as  to  the  extent  of 
his  rights  where  no  one  was  injured  by  it :  Steffy  v.  Carpenter,  1  Wright  41.  It 
is  not  necessary  that  admissions  to  be  received  in  evidence  should  be  admissions 
of  facts  within  the  knowledge  of  the  party  making  them  :  Chapman  v.  Chicago 
R.  R.  Co.,  26  Wis.  295. 

To  render  the  declaration  of  an  agent  admissible  against  his  principal,  they 
must  be  made  in  regard  to  a  transaction  then  depending,  and  must  be  part  of 
the  res  gestce :  Hayioard  Rubber  Company  v.  Duncklee,  30  Vt.  29  ;  Raiford  v. 
French,  11  Rich.  (Law)  367  ;  Mason  v.  Croom,  24  Ga.  211  ;  Winter  v.  Burt,  31 
Ala.  33;  Robinson  v.  Fitchburg .and  Worcester  Railroad  Company,  7  Gray  92; 
Vail  V.  Judson,  4  E.  D.  Smith  165  ;  Gilson  v.  Wood,  20  111.  37  ;  Gerke  y.  Cali- 
fornia Steam  Navigation  Company,  9  Cal.  251  ;   Dick  v.  Lindsay,  2  Grant  431  ; 


51  MEDIATE     EVIDENCE. 

panics  an  act,  it  is  frequently  admissible  as  part  of  the  act  itself. 
Such  declarations,  it  will  bo  seen,  are  more  frequently  used  as  col- 
lateral or  indirect  evidence  from  which  some  other  fact  is  to  be  in- 
ferred, than  as  direct  evidence  of  a  fact ;  and  as  such  will  be 
afterwards  considered.  Suffice  it  to  observe,  for  the  present,  that 
declarations  are  usually  admissible  where  the  fact  which  they  accom- 
pany is  material  and  admissible,"  and  where  the  nature  and  quality 
of  the  act  are  also  material ;  for  in  such  instances  a  declaration 
accompanying  the  act  may  .either  be  regarded  as  part  of  the  act 
itself,  or  as  the  most  proximate  and  satisfactory  evidence  for  explain- 
ino;  and  illustrating;  the  fact.^ 

■=  7  Ad.  &  E.  (34  E.  C.  L.  R.)  361  ;  E.  v.  Bliss,  Ibid.  550. 

Garfield  v.  KnigMs  Ferry  Company,  14  Cal.  35  ;  Milwaulcee  Railroad  Company 
V.  Finney,  K)  Wis.  388  ;  Robeson  v.  Schuylkill  Navigation  Company,  3  Grant 
186;  Persse  Paper  Worls  v.  Willett,  1  Rob.  131  ;  Low  v.  Conn.  R.  R.  Co.,  46 
N.  H.  284 ;  Weeks  v.  Barron,  -38  Vt.  420 ;  Price  v.  JST.  J.  R.  R.  Co.,  2  Vroom 
229 ;  Raislee  v.  Springer,  38  Ala.  703 ;  Beardslee  v.  Steinmesck,  38  Mo.  168 ; 
Walker  v.  Howell,  1  Cald.  238  ;  Eudsfreth  v.  Allen,  26  Ind.  165  ;  Converse  v. 
Blumrick,  14  Mich.  109  ;  Burnside  v.  Grand  Trunk  R.  R.  Co.,  47  N.  H.  554 ; 
Green  v.  North  Buffalo  Township,  6  P.  F.  Smith  110  ;  Penna.  R.  R.  Co.  v. 
Books,  7  Ibid.  339 ;  Thomas  v.  Sternheimer,  29  Md.  268  ;  Tuttle  v.  Turne)',  28 
Tex.  759 ;  Farmer  v.  Lewis,  1  Buck  66  ;  Lowry  v.  Harris,  12  Minn.  255  ;  Howe 
3fachine  Co.  v.  Snow,  32  Iowa  433  ;  Hall  v.  Hall,  34  Ind.  314  ;  Matteson  v.  New 
York  R.  R.  Co.,  6^  Barb.  364  ;  Michigan  Central  R.  R.  Co.  v.  Cougar,  55  111. 
503 ;  Osgood  v.  Bringoff,  32  Iowa  265  ;  Happy  v.  Masher,  -18  N.  Y.  313.  Before 
the  statements  of  an  au[;ent  can  be  j^iven  in  evidence  the  agency  must  first  be 
clearly  established :  Rosenstock  v.  Tormey,  32  Md.  169.  They  are  admissible  to 
charge  the  principal  only  when  they  are  part  of  the  res  gestce :  Whiteside  v. 
Margarl,  51  111.  507 ;  Smith  v.  Wallace,  25  AVis.  55.  Letters  of  deceased  agents 
are  not  admissible  to  prove  past  occurrences  :  Alabama  E.  R.  Co.  v.  Johnson,  42 
Ala.  242  ;  Buchanan  v.  Collins,  42  Ala.  419.  The  rule  that  the  declarations  of 
an  agent  are  not  admissible  unless  part  of  the  res  gestce  applies  to  the  officers 
and  agents  of  municipal  corporations  :  Blanchard  v.  Blackstone,  102  Mass.  343 ; 
Cortland  County  v.  Herkimer  County,  44  N.  Y.  22. 

The  declarations  of  an  agent  tending  to  show  he  had  knowledge  of  a  certain 
fact  are  admissible  to  prove  such  knowledge  and  to  discharge  his  principal  : 
MAuley  v.  Western  Railroad  Company,  33  Vt.  311.  The  declarations  of  indi- 
viduals, who  are  directors  of  a  bank,  not  forming  part  of  an  official  act,  are  not 
admissible  to  prove  an  antecedent  fact  against  the  bank  :  Pemigeivassett  Bank  v. 
Rogers,  18  N.  II.  255. 

'  Tlie  rules  regulating  the  admissil)ility  of  declarations  accompanying  acts  are 
difficult,  if  not  impos8il>le,  to  be  defined  ;  the  general  principles  on  which  they  are 
founded  are  well  stated  in  the  text.  These  declarations  are  not  received  as 
proofs  of  facts — but  as  facts  showing  the  motives  for  an  act  or  the  character  of 
it:  filighl  v.  Ashley,  1  Pet.  C.  C.  Rep.  22;  Pool  v.  Bridges,  4  Pick.  378;  Boyden 
v.  Moore,  I  1  Ibid.  '■'>()'> ;    Tompkins  v.  Sallmarsh,  14  S.  &,  R.  275.     "When  an  act 


REPUTATION.  51 

Experience  supplies  a  reasonable  presumption  that  a  declaration 
made  by  a  person  in  doing  an  act,  as  to  bis  intention  and  object,  and 
where  that  person  labored  under  no  temptation  to  deceive,  was  spon- 
taneous, natural,  and  consistent  with  truth.  The  most  usual  example^ 
adduced  in  illustration  of  this  doctrine,  is  that  of  a  declaration  made 
bj  a  trader,  at  the  time  of  deserting  his  house  or  place  of  business,  as 
to  his  intention  and  object  in  so  doing,  in  order  to  prove  an  act  of 
bankruptcy.  Here  it  is  observable  that  the  fact  of  departure  is  ma- 
terial :  the  question  *is  as  to  the  nature  and  quality  of  the  act,  r*rr)-i 
that  is,  as  to  the  object  and  intention  of  the  trader  in  doing 
that  act ;  and  to  prove  this,  the  declarations  which  he  made  at  the 
time  of  leaving  his  house  or  counting-house,  are  constantly  admitted 
in  proof  of  his  design,  as  being  natural  and  spontaneous  indications 
of  the  truth,  although  his  subsequent  declaration,  even  upon  oath, 
would  be  absolutely  rejected. 

It  is  emphatically  to  be  observed,  that  the  rule  admitting  evidence 
of  a  declaration  accompanying  an  act,  is  not  founded  on  any  general 
presumption  that  in  every  such  case  credit  is  to  be  given  to  the  vera- 
city of  the  declarant ;  for  if  that  Avere  so,  and  acted  on  as  a  general 
rule,  the  acts  of  strangers  would  be  admissible  for  the  purpose  of 
sanctioning  the  admission  of  such  declaration.  But,  as  will  be  seen, 
the  acts  of  strangers  are  excluded,  for  reasons  as  strong,  if  not 
stronger,  than  those  which  exclude  the  mere  declarations  of  strangers  ; 
and  as  the  transactions  of  mere  strangers,  not  in  themselves  material 
to  the  subject  of  inquiry,  are  properly  regarded  as  inadmissible,  so 
likewise  must  declarations  be  excluded  which  depend  for  their  credit 
on  their  connection  with  the  acts  of  strangers. 

Whether,  therefore,  declarations  accompanying  acts  are  to  be 
deemed  of  value  from  credit  given  to  the  declarant,  or  as  being  part 
and  parcel  of  the  collateral  circumstances  from  which  the  jury  are  to 
draw  their  conclusion  as  to  the  nature  and  quality  of  the  act  itself, 
it  is  essential  that  the  act  itself  should  be  material  and  admissible.     If, 

*  See  below,  tit.  Witness  ;  Vol.  II.,  tit.  Bankrupt. 

is  done,  to  which  it  is  necessary  to  ascribe  a  motive,  it  is  always  considered  that 
what  is  said  at  the  time,  from  whence  the  motive  may  be  collected,  is  part  of 
the  res gestce.^''  Per  Rogers,  J.,  Gilchrist  v.  Ball,  8  Watts  358.  Upon  a  question 
of  boundary,  the  declaration  of  a  deceased  person  who  pointed  out  a  line  of 
marked  trees,  saying  it  was  a  known  division  line,  was  held  to  be  admissible  in 
evidence,  as  part  of  the  res  gestce  ;  but  any  further  declaration  made  by  him  at 
the  time  of  a  fact  material  to  the  issue,  was  held  to  be  inadmissible  :  Van  Dusen 
V.  Turner,  12  Pick.  532. 


52  M  E  D  I  A  T  E    E  V  I  D  E  N  C  E. 

for  the  sake  of  illustration,  the  question  for  what  purpose  a  sum  of 
money  was  paid  by  A.  to  B.,  were  material  to  the  issue,  what  A. 
said  to  B.  on  paying  the  money  would  be  most  important,  it  may  be, 
conclusive  evidence.  But  if  A.  and  B.  were  strangers  to  the  cause, 
and  the  fact  of  payment  were  not  material  to  the  issue,  then,  although 
A.  at  the  time  of  payment  made  a  declaration  as  to  the  truth  of  a 
fact  material  to  the  issue,  as  that  he  had  lost  a  wager  betted  on  that 
fact,  the  declaration  would  neither  be  evidence  in  itself  nor  as  ex- 
^^  planatory  of  the  act  of  A.,  *which,  as  being  the  act  of  a 
L       -'    stranger,  was  also  inadmissible.®^ 

*  The  principle  of  admitting  declarations  as  accompanying  acts  was  much  con- 
sidered in  the  case  of  Doe  d.  Tatham  v.  Wright^  7  Ad.  &  E.  (34  E.  C.  L.  R.)  313  ; 

5  Nev.  &  M.  (30  E.  C.  L.  R.)  132 ;  4  Ring.  N.  C.  (33  E.  C.  L.  R.)  489 ;  2  Nev. 

6  P.  30.5. 

'  Declarations,  which  form  part  of  the  res  gestce.,  which  explain  and  give  charac- 
ter to  what  was  done  at  the  time,  are  not  liable  to  the  objection  that  they  are 
hearsaj' :  Kirhy  v.  The  State,  7  Yerg.  259 :  Evans  v.  Jones,  8  Yerg.  461  :  Marr  v. 
Hill,  10  Mo.  320  ;  Kinzer  v.  Mitchell,  8  Rarr  64 ;  St.  Clair  v.  Shale,  9  Rarr 
252  ;  Cashj  v.  Haviland,  13  Ala.  314  -,  Elkins  v.  Hamilton,  20  Vt  627  ;  Holhrook 
V.  Murray,  20  Vt.  525 ;  Russell  v.  Frishie,  19  Conn.  205 ;  Redding  v.  Spriiance, 
4  Harring.  217;  Rotdhac  v.  White,  9  Ired.  63;  Biles  y.  Holmes,  11  Ired.  16; 
Tomkies  v.  Reynolds,  17  Ala.  109  ;  Beckwith  v.  Mollahan,  2  W.  Va.  477  ;  State 
V.  Dula,  1  Phill.  (Law)  211 ;  Rutland  v.  Hathorn,  36  Geo.  380 ;  Monday  v.  State, 
32  Ga.  672 ;  Baker  v.  Kelly,  41  Miss.  696 ;  Marcy  v.  Merchants''  Ins.  Co.,  19 
La.  Ann.  388;  Webster  v.  Canman,  40  Mo.  156;  Garber  v.  State,  4  Cald.  161 ; 
Reggs  v.  State,  6  Cald.  517 ;  Comm.  v.  Janes,  99  Mass.  438  ;  Reed  v.  New  York 
Central  R.  R.  Co.,  56  Rarb.  493  ;  Sears  v.  Hoyt,  37  Conn.  406  ;  Southwestern  R. 
R.  Co.  V.  Rowan,  43  Ga.  411  ;  Parsons  v.  State,  43  Ga.  197  ;  Head  v.  State,  44 
Miss.  731  ;  Collins  v.  Waters,  54  111.  485;  Doivns  v.  Neiv  York  R.  R.  Co.,  47 
N.  Y.  83  ;  Union  Savings  Association  v.  Edivards,  47  Mo.  445  ;  Rollins  v.  Strout, 
6  Nev.  150;  Flint  v.  Norwich  Transportation  Co.,  7  Rlatchf.  536.  When  it  is 
competent  to  prove  an  act,  it  is  also  competent  to  prove  as  part  of  the  res  gestce 
what  the  person  performing  the  act  said  at  the  time  in  explanation  :  Braselton 
V  Turney,  7  Cald.  267.  In  proving  a  sale  of  goods,  evidence  is  admissible  of 
declarations  of  the  parties  accompanying  the  acts  and  forming  part  of  the  res 
gestce:  Elliott  v.  Stoddard,  98  Mass.  145.  The  declarations  of  bystanders  at  a 
public  sale  ai-e  admissible  in  evidence  in  regard  to  it:  Stewart  v.  Severance,  43 
Mo.  322.  Acts  and  declarations  contemporaneous  with  an  alleged  gift  to  prove 
delivery :  Bragg  v.  Massis^  Adm.,  38  Ala.  89.  So  also  statements  of  officials 
made  during  the  prosecution  of  work  for  a  municipal  corporation  to  persons 
engaged  upon  it:  Maker  v.  Chicago,  38  111.  206. 

When  an  account  is  made  out  by  the  creditor,  and  receipted  by  him,  the  pre- 
MUiiiption  iirisriM  that  it  was  paid  by  the  debtor.  If  the  creditor  in  the  receipt 
stutcH  that  he  nsceived  the  money  from  a  third  person,  it  is  evidence  of  that  fact 
againHt  tlic  delttor.  So,  also,  if,  at  the  time,  he  had  verbally  admitted  or  declared 
Hudi  to  be  the  fact,  it  would  be  competent  testimony  against  the  debtor,  as  a  part 


DECLARATION.  53 

These  classes  of  evidence  are  distinguishable  from  all  others  by 
this  characteristic  difference,  that  such  evidence  may  be  resorted  to 
in  the  first  instance  as  original  evidence,  whilst  all  other  mediate 
testimony  is  admissible  only  on  a  principle  of  necessity,  as  secondary 
evidence,  after  the  failure  of  evidence  of  a  higher  and  more  satisfac- 
tory nature/ 

'  There  is  this  essential  distinction  between  a  declaration  which  is  admissible 
as  accompanying  an  act,  and  one  admissible  merely  as  secondary  evidence ;  in 
the  former  case,  the  admissibility  results  immediately  from  its  connection  with 
a  fact  material  to  the  cause,  and  already  in  evidence  ;  whilst  to  warrant  the  ad- 
mission of  secondary  evidence,  afouudation  must  first  be  laid  by  proof  of  extrinsic 
circumstances,  usually  unconnected  with  the  cause. 

of  the  res  gestce  :  Harrison  v.  Harrison,  9  Ala.  73.  Where  an  act  proved  is 
relevant  and  material,  declarations  accompanying  the  act,  and  strictly  explana- 
tory of  it,  are  admissible  as  part  of  the  res  gestce:  Tucker  v.  Peaslee,  36  N.  H. 
167;  Barifield  v.  Parker,  Ibid.  353;  Hall  v.  Young,  37  Ibid.  134;  Fail  v. 
M' Arthur,  31  Ala.  26 ;  M'Lemore  v.  Pinkston,  Ibid.  266  ;  George  v.  Thomas,  16 
Tex.  74;  Meek  v.  Perry,  36  Miss.  190.  Where  it  is  material  to  show  the  animus 
with  which  an  act  was  done,  both  the  prior  and  subsequent  declarations  of  the 
party  doing  the  act,  as  well  as  those  which  accompany  it,  are  admissible  :  Bar- 
tram  v.  Stone,  31  Conn.  159.  In  a  suit  for  damages  for  injury  caused  by  the 
overturning  of  a  stage  coach,  the  plaintiff's  declarations  at  the  time  of  the  acci- 
dent, are  admissible  :  Frink  v.  Coe,  4  Greene  555.  But  the  statements  of  a 
railroad  conductor  made  after  the  accident,  are  no  part  of  the  res  gestce :  Griffin 
v.  Montgomery  Railroad  Co.,  26  Ga.  111.  The  rule  that  declarations  of  a  party 
at  the  time  of  doing  an  act,  are  admissible  as  part  of  the  res  gestce,  does  not 
apply  so  as  to  admit  as  against  third  persons,  declarations  of  a  past  fact,  having 
the  effect  of  criminating  the  latter :  People  v.  Simonds,  19  Gal.  275. 

The  declarations  of  a  sick  person  as  to  his  symptoms,  are  admissible:  Feagin 
v.  Beasley,  23  Ga.  17  ;  Wilkinson  v.  Moseley,  30  Ala.  562;  Wacllow  v.  Perryman, 
27  Mo.  279;  Tilman  v.  Stringer,  26  Ga.  171  ;  Looper  v.  Bell,  1  Head  373  ;  Howe 
v.  Plainfield,  41  N.  H.  135  ;  State  v.  Howard,  32  Vt.  380 ;  Perkins  v.  Concord 
Railroad,  44  N.  H.  223;  Barber  v.  Mernan,  11  Allen  322;  Mattison  v.  Neic 
York  R.  R.  Co.,  35  N.  Y.  487  ;  Fondrew  v.  Dresfu,  39  Miss.  324 ;  Hlinois  R.  R. 
Co.  V.  Sutton,  42  111.  438  ;  Gray  v.  McLaughlin,  26  Iowa  279.  The  declarations 
of  one  who  was  killed  by  a  railroad  accident  as  to  the  manner  in  which  such 
accident  occurred  are  admissible  in  an  action  against  the  railroad  company  by 
the  widow :  Brownell  v.  Pacific  R.  R.  Co.,  49  Mo.  239 ;  contra,  Friedman  v. 
Railroad  Co.,  7  Phila.  203.  Declarations  of  the  accused  made  when  first  charged 
with  the  crime  are  admissible  in  his  favor :  Comfort  v.  People,  54  111.  404 ;  State 
V.  Patterson,  63  N.  C.  520.  A  person  accused  of  crime  is  not  permitted  to  prove 
his  conduct  and  statements  soon  after  the  commission  of  the  crime  :  Hall  v.  State, 
40  Ala.  698  ;  Young  v.  Power,  41  Miss.  197  ;  Baker  v.  Kelly,  41  Miss.  696  ; 
Morris  v.  Nashwood,  1  Buck  208  ;  Tucker  v.  Hood,  2  Ibid.  85  ;  Hyatt  v.  Adams, 
16  Mich.  180.  A  baggage  master  is  the  proper  person  to  inquire  of  in  regard  to 
lost  baggage,  and  his  answer  is  part  of  the  evidence  of  the  loss.  It  is  a  part  of 
the  res  gestce:    Curtis  v.  Avon  R.  R.  Co.,  49  Barb.  148. 


53  MEDIATE     EVIDENCE. 

Next,  as  to  such  mediate  evidence  as  is  of  a  secondary  description. 

As    information    derived    through    another    person    is    in   its    own 

nature  inferior  in  point  of  certainty  to  that  which  is  derived  iiiime- 

diatelv  from  an  eye  or  ear  witness,^  so,  *even  in  cases  where 

L       -•    the  party  from  whom  such   testimony  is  derived  delivered  it 

8  The  highest  degree  of  certainty  of  which  the  mind  is  capable,  with  respect  to 
the  existence  of  a  particular  fact,  consists  in  a  knowledge  of  it  derived  from  actual 
perception  of  the  fact  by  the  senses  ;  and  even  this  degree  of  evidence  is  obviously 
capable  of  being  strengthened  or  weakened  by  particular  circumstances.  It  is 
seldom,  however,  that  a  jury  can  act  upon  knowledge  of  this  description;  it 
rarely  happens  that  a  fact  which  can  be  decided  by  mere  inspection  is  submitted 
to  their  consideration.  In  some  instances,  however,  an  inspection  by  the  jury 
conduces  to  their  decision  ;  where  the  question  turns  upon  local  situation,  a  view 
may  be  had.  So  the  judges  in  cases  of  mayhem,  used  to  act  super  visum  vul- 
neris  ;  so  a  jury  of  matrons,  upon  the  plea  of  pregnancy,  inspect  the  person  of 
the  prisoner.  The  degree  of  evidence  which  ranks  the  second  in  the  scale,  con- 
sists of  information  derived,  not  from  actual  perception  by  our  senses,  but  from 
the  relation  and  information  of  others  who  have  had  the  means  of  acquiring  actual 
knowledge  of  the  facts,  and  in  whose  qualifications  for  acquiring  that  knowledge 
and  retaining  it,  and  faithfulness  in  afterwards  communicating  it,  we  can  place 
confidence. 

Information  thus  derived  is  evidently  inferior,  in  point  of  certainty,  to  that 
knowledge  which  is  acquired  by  means  of  the  senses,  since  it  is  one  step  removed 
from  the  highest  and  most  perfect  source.  The  truth  of  the  fact  in  question 
depends  upon  the  powers  of  perception  possessed  by  another  ;  the  opportunity 
afforded  him  of  applying  them;  his  diligence  in  making  that  application,  the 
strength  of  his  i-ecollection,  and  his  inclination  to  speak  or  to  write  the  truth.  It 
is,  however,  upon  knowledge  thus  derived  that  juries  must  in  general  act ;  they 
must  be  informed  of  the  res  gestae  by  those  who  have  been  eye  and  ear  witnesses 
of  them  ;  their  means  of  knowledge  and  their  faithful  communication  of  it,  being 
guarded  by  the  securest  means  which  the  law  can  devise.  A  third,  and  still 
inferior  ground  of  belief,  consists  in  information  which  we  derive,  not  imme- 
diately from  one  who  has  had  actual  knowledge  of  the  fact  by  the  perception  of 
his  senses,  but  from  one  who  knows  nothing  more  of  the  fact  than  that  it  has 
been  asserted  by  some  other  person  ;  this  species  of  evidence,  which  is  generally 
termed  hearsay  evidence,  is  evidently  inferior,  in  point  of  certainty,  to  the  former, 
even  for  the  common  purposes  of  daily  intercourse  in  society;  for,  although  the 
author  of  the  assertion  may  be  known,  and  his  veracity  highly  appreciated,  there 
is  a  greater  latitude  afforded  for  deception,  mistake,  and  misapprehension,  and 
for  defect  of  memory,  and  hence  a  degree  of  doul)t  must  result,  which  must  evi- 
dently be  increased  in  proportion  to  the  number  of  persons  through  whom  the 
communication  has  been  transmitted  ;  and,  consequently,  where  the  author  is 
unknown,  and  the  number  of  intermediate  parties  who  have  acted  in  the  trans- 
mission is  also  unknown,  the  knowledge  must  be  vague  and  uncertain,  even  as 
applied  to  the  common  aHairs  of  life.  But  for  the  purposes  of  proof  in  a  court 
of  justice,  a  still  stronger  reason  operates  to  the  rejection  of  such  evidence, 
namely  that  it  cannot  be  subjected  to  the  ordinary  tests  which  the  law  has  pro 
vided  for  the  ascertainment  of  truth,  the  obligation  of  an  oath,  and  the  oppor- 


SECONDARY  MEDIATE  EVIDENCE.  55 

under  the  sanction  of  a  judicial  *oath,  and  althouffh  the  partv  ^ 
to  be  affected  by  it  had  the  opportunity  to  cross-examine,  yet  L  J 
the  testimony  so  given  would  still  be  inferior  in  degree  to  the  direct 
testimony  of  the  same  witness,  and  consequently  such  inferior  evi- 
dence would  be  excluded  by  the  general  principle  ah'cady  adverted  to, 
so  long  as  the  original  witness  could  himself  be  produced. 

But  in  ordinary  cases,  where  the  testimony  formerly  given  con- 
sists of  mere  declarations,  which  rest  principally,  if  not  entirely,  on 
the  credit  of  the  party  who  made  them,  such  evidence  is  of  a  still 
weaker  and  more  imperfect  description,  not  being  sanctioned  by 
either  of  the  great  tests  of  truth  already  mentioned.  Hence  the 
general  rule  of  *law  is,  that  such  evidence  cannot  be  received  r^rp-\ 
except  in  particular  instances  where  the  necessity  is  urgent, 
and  peculiar  considerations  sanction  a  departure  from  the  general  rule. 

tunity  afforded  for  cross-examination  ;  for  these,  or  equivalent  ones,  are  the 
<;;uarantee8  of  truth,  which  the  law  in  ordinary  eases  invariably  requires.  In 
the  common  course  of  life,  evidence  of  this  nature  is  frequently,  nay  usually, 
acted  upon  without  scruple  ;  but  In  the  ordinary  affairs  of  life  there  is,  in  cren- 
eral,  no  considerable  temptation  to  deceive :  on  the  contrary,  a  legal  investiga- 
tion of  a  fact,  which  involves  the  highest  and  dearest  interests  of  the  parties  con- 
cerned— property,  character,  nay  liberty,  or  life  itself — presents  the  greatest 
possible  temptations  to  deceive  ;  and  therefore  that  evidence  which  is  admitted 
before  a  jury  must  be  guarded  by  greater  restraints  and  stricter  rules  than 
those  which  are  sufficient  for  the  common  purposes  of  life. 

Even  if  it  were  to  be  assumed  that  one  who  had  been  long  enured  to  judicial 
habits  might  be  able  to  assign  to  such  evidence  just  so  much  and  no  greater 
credit  than  it  deserved,  yet,  upon  the  minds  of  a  jury  unskilled  in  the  natui-e  of 
judicial  proofs,  evidence  of  this  kind  vrould  frequently  make  an  erroneous  im- 
pression. Being  accustomed  in  the  common  concerns  of  life,  to  act  upon  hearsay 
and  report,  they  would  naturally  be  inclined  to  give  such  credit  when  acting 
judicially  ;  they  would  be  unable  to  reduce  such  evidence  to  its  proper  standard, 
when  placed  in  competition  with  more  certain  and  satisfactory  evidence  :  they 
would,  in  consequence  of  their  previous  habits,  be  apt  to  forget  how  little  reli- 
ance ought  to  be  placed  upon  evidence  which  may  so  easily  and  securely  be  fab- 
ricated ;  their  minds  would  be  confused  and  embarrassed  by  a  mass  of  conflict- 
ing testimony ;  and  they  would  be  liable  to  be  prejudiced  and  biassed  by  the 
character  of  the  person  from  whom  the  evidence  was  derived.  In  addition  to 
this,  since  everything  vrould  depend  upon  the  character  of  the  party  who  made 
the  assertion,  and  the  means  of  knowledge  which  he  possessed,  the  evidence,  if 
admitted,  would  requii-e  support  from  proof  of  the  character  and  respectability 
of  the  asserting  party  ;  and  evei*y  question  might  branch  out  into  an  indefinite 
number  of  collateral  issues. 

Upon  these  grounds  it  is  that  the  mere  recital  of  a  fact,  that  is,  the  mere  oral 
assertion  or  written  enti-y  by  an  individual  that  a  particular  fact  is  true,  cannot 
be  received  In  evidence.     See  Gambler  on  the  Study  of  Moral  Evidence. 


6b  MEDIATEEVIDE^^CE. 

Where  a  •witness  to  facts  might  be  produced  and  examined  on  oath, 
little  doubt  could  be  entertained  that  hearsay  evidence  of  his  mere 
declaration,  heard  and  detailed  by  another,  ought  to  be  excluded,  so 
infinitely  inferior  in  degree  must  such  hearsay  evidence  be  when  com- 
pared with  direct  testimony  delivered  in  open  Court. 

Immediate  testimony  is  given  under  the  solemn  sanction  of  an 
oath,  in  the  presence  of  the  public;  the  jury  have  the  advantage 
of  observing  the  deportment  of  the  Avitness,  the  manner  in  which  he 
gives  his  testimony :  in  particular,  whether  as  one  relying  on  the 
consistency  of  truth,  he  answers  promptly  and  readily  according  to 
the  suggestions  of  his  memory,  or  with  hesitation  and  difficulty, 
either  attempting  to  evade  direct  answers,  or  to  gain  time  to  weigh 
them,  in  order  to  avoid  contradictions  and  inconsistency  ;  whether 
he  readily  answers  all  questions  indifferently,  whether  they  make  in 
favor  or  against  the  party  whose  witness  he  is,  or  he  gives  favor- 
able answers  on  the  one  side  with  willingness  and  readiness,  on  the 
other  with  difficulty  and  reluctance.  The  attention  of  such  a  witness 
is  called  directly  and  immediately  to  the  very  facts  of  which  the 
disclosure  is  material ;  his  means  of  knowledge,  memory,  situation, 
connection  with  the  parties,  and  his  motives,  are  subject  to  the 
severe  and  trying  test  of  cross-examination,  by  means  of  which  fraud- 
ulent witnesses  are  often  surprised  and  detected. 

In  all  these  important  particulars  mediate  evidence  is  usually 
defective;  for  although  no  doubt  be  entertained  that  the  witness 
examined  heard  from  another  the  statement  which  he  is  ready  to 
repeat,  yet  that  other  did  not  make  the  communication  under  the 
sanction  of  an  oath  ;  there  are  no  sufficient  means  of  ascertaining 
whether  he  had  the  opportunity  or  the  capacity  for  minute  and 
*^ccurate  observation,  nor  of  judging  as  to  the  tenacity  of 
L  '  J  his  memory ;  his  attention  in  making  the  communication  may 
not  have  been  sufficiently  directed  to  many  of  the  particular  facts, 
which  afterwards  appear  to  be  material ;  he  may  have  omitted  many 
which  are  important,  or,  not  knowing  that  any  such  use  would  after- 
wards be  made  of  his  declarations,  may  have  expressed  himself  with- 
out that  caution  and  accuracy  which  he  would  have  deemed  to  be 
necessary  had  he  been  examined  under  the  sanction  of  an  oath  before 
a  jiubiic  tiihunal,  having  his  attention  particularly  directed  to  each 
material  fact,  and  with  a  full  knowledge  of  the  important  conse- 
quences which  might  result  from  his  testimony  with  respect  to  the 
property,  liberty,  or  lives  of  others,  and  the  necessity  for  attention 
and  caution   in   liis  answers.      In   addition   to  this,  he  may  have  been 


SECONDARY,  WHY  GENERALLY  EXCLUDED,       57 

induced  to  misrepresent  facts  on  the  particular  occasion,  under  the 
influence  of  indirect  motives,  ^vliich,  without  the  opportunity  of  cross- 
examination,  it  is  impossible  to  trace  or  even  to  surmise. 

Where  the  communication  is  derived  through  several  intermediate 
witnesses,  it  is  still  weaker  in  degree ;  there  is  greater  latitude 
afforded  for  misunderstanding  and  mistake,  or  even  designed  wilful 
misrepresentation  ;  and  it  is  more  difficult  to  appreciate  the  veracity 
of  the  original  witness,  the  means  which  he  possessed  of  acquiring 
information,  and  the  motives  by  which  he  was  actuated  in  making 
the  communication.  Ordinary  experience  shows  how  little  credit  is 
due  to  such  mediate  testimony,  and  how  frequently  it  happens  that 
even  most  absurd  and  improbable  reports  acquire  credit. 

But  where  such  immediate  testimony  is  unattainable,  and  declara- 
tions oral  or  written  can  be  proved  to  have  been  made,  why,  it  may 
be  asked,  should  not  these,  in  default  of  better  evidence,  be  admitted? 
as  such  evidence  would,  in  numerous  instances,  be  sufficient  to  con- 
vince an  ordinary  individual,  why  should  truth  derivable  from  such 
evidence  be  excluded  ?  The  answer  is,  because  if  such  *evi- 
dence  were  generally  receivable,  the  uncertainty  and  con-  ^  '  J 
fusion  which  would  result  from  its  general  reception  would  far  out- 
weigh the  benefit  which  might  possibly  be  derived  from  its  admission 
in  particular  instances. 

The  law  for  regulating  the  reception  of  evidence  ought  to  proceed 
upon  certain  grounds,  and  prescribe  plain  and  determinate  limits  : 
if  none  were  to  be  prescribed,  the  most  serious  inconvenience  would 
be  experienced  in  the  administration  of  justice  ;  the  trials  of  causes 
would  be  unnecessarily  protracted  by  the  admission  of  unnecessary 
evidence,  and  the  attention  of  the  jurors  would  often  be  distracted 
from  the  consideration  of  that  which  was  material  and  useful,  and 
applied  to  that  which  was  unimportant,  or  even  irrelevant :  on  the 
other  hand,  indefinite  and  obscure  boundaries,  which  occasioned  the 
admission  of  evidence  to  be  encumbered  with  doubts  and  difficulties, 
would  be  worse  than  none. 

To  take  a  strong  case  :  suppose  that  a  man,  asserting  that  he  is 
urged  by  the  reproaches  of  his  conscience  to  confess  a  crime  of 
great  enormity,  surrenders  himself  into  the  hands  of  justice,  and 
that  his  ample  confession  involves  others  as  having  been  his  guiltv 
associates ;  it  may  easily  be  supposed  that  in  such  a  case  the  appa- 
rently sincere  penitence  of  the  self-accuser,  and  the  great  improba- 
bility that  such  a  statement  under  the  circumstances  could  possibly 
be   founded   on   any   but   sincere    motives,   would    strongly    tend    to 


58  M  E  D  I A  T  E     E  V  I  D  E  N  C  E. 

induce  one  who  heard  the  confession,  and  knew  the  circumstances 
under  which  it  was  made,  to  give  it  credit.  This  may  readily  be 
admitted :  the  question,  however,  is  not  what  might  happen  under 
special  circumstances,  but  whether  they  warrant  a  general  rule,  and 
whether  a  general  rule  which  would  include  such  evidence  would 
not  also  include  a  great  deal  more  of  a  suspicious  and  unsatisfactory 
nature.  In  order  to  form  a  conclusion  on  this  subject,  all  peculiar 
and  adventitious  circumstances  as  to  the  particular  manner,  conduct 
and  demeanor  of  the  penitent,  his  expressions  of  sorrow  and  con- 
trition, *must  be   left  out  of  the  account ;    these  are  merely 

r*591  •  •  •  •  • 

L       -'    adventitious,  and  are  circumstances  in  themselves  too  variable 

and  indefinite  to  furnish  a  rule  of  admission  or  exclusion.  Stripped 
of  such  merely  casual  circumstances  as,  whatever  their  influence 
might  be  in  particular  instances,  could  supply  no  general  and  cer- 
tain rule,  the  question  would  be,  whether  the  consideration  that  the 
party  accusing  another  avowed  his  own  guilt,  to  the  same  or  it  may  be 
to  a  less  extent,  supplied  a  general  sanction  for  the  reception  of  such 
evidence.      On   this  question  it  is  difficult  to  raise  a  doubt. 

To  ascertain  by  what  impulses  and  motives  a  person  so  situated 
might  be  actuated  in  making  such  a  statement,  is  far  beyond  the 
power  of  .human  wisdom  ;  that  he  was  really  the  guilty  person  he 
avowed  himself  to  be,  might  indeed  be  readily  inferred,  so  far  as 
he  alone  was  concerned  ;  but  in  charging  others  as  his  associates,  it 
is  far  from  impossible  that  he  might  practice  deceit  or  misrepresen- 
tation from  sinister  motives  :  it  might  be  in  the  hope  of  procuring  in 
his  own  favor  a  mitigation  of  punishment  or  even  a  pardon  ;  it  might 
be  for  the  purpose  of  extenuating  his  own  conduct ;  or  even  that  he 
acted  from  motives  of  malice  and  revenge,  or  for  the  sake  of  reward, 
in  a  case  where  security  and  reward  were  held  out  as  inducements  to 
a  detection,  or  might  expect  such  a  result  in  the  event  of  the  con- 
viction of  the  party  whom  he  thus  charged  with  being  a  guilty 
associate. 

To  establish,  therefore,  a  general  rule,  that  where  a  self-accuser 
at  the  time  of  his  confession  charged  another  with  the  commission  of 
the  same  crime,  the  confession  should  be  received  against  the  latter, 
would  be  to  admit  evidence  in  many  cases  of  too  suspicious  and 
dajigerous  a  description  to  be  relied  on  generally,  especially  by 
juries,  who  Avould  frequently  be  destitute  of  those  collateral  aids 
which  would  enable  an  individual  accjuainted  with  all  the  minute 
circumstances  of  the  case   to  form   his;  own  judgment,  and  who  for 


SECONDARY,    WHY    GENERALLY     EXCLUDED.  60 

"want   of  such   means  might   frequently  *be   induced  to  give    r*pA-| 
credit  to  a  statement  wlierc  an  individual  would  have  withheld 
his  confidence  altogether. 

Again,  in  respect  of  civil  liability,  it  is  very  possible  that  a  decla- 
ration by  A,  that  he  was  jointly  liable  with  B  to  the  payment  of  a 
debt  or  duty,  would,  under  particular  circumstances,  entitle  him  to 
credit;  it  might  be  that  the  very  circumstance  of  his  at  once  admit- 
ting his  own  responsibility  would  be  a  sanction  for  believing  that  B 
was  also  liable :  but  it  might  also  happen  that  such  an  admission  was 
but  a  mere  artifice,  resorted  to  for  the  purpose  either  of  causing 
another  who  was  not  liable  to  contribute  to  the  payment  of  A's  debt, 
or  even  resulted  from  collusion  Avith  one  setting  up  a  false  claim  to 
defraud  B. 

It  is  obvious,  therefore,  that  a  general  rule  which  admitted  the 
mere  statement  of  one  man  to  be  used  against  another  merely  on 
the  ground  that  such  statement  Avas  apparently  contrary  to  the 
interest  of  him  who  made  it,  though  it  might  occasionally  tend  to  the 
ends  of  justice,  would  in  other  instances  be  productive  of  mischief 
and  injustice. 

But  if  the  consideration  that  the  statement  was  apparently  con- 
trary to  the  interest  of  the  party  who  made  it,  would  not  in  general 
warrant  its  reception,  it  is  plain  that  the  reasons  for  exclusion  Avould 
operate  still  more  forcibly  to  the  general  exclusion  of  statements, 
the  reception  of  which  was  not  sanctioned  by  some  general  rule  of 
law.  In  individual  instances,  casual  and  adventitious  circumstances, 
and  in  particular  a  full  conviction  of  the  veracity  and  accuracy,  as 
well  of  the  party  who  made  as  of  the  party  who  communicated  the 
declaration,  would  be  a  sufficient  ground  for  belief,  on  which  an  in- 
dividual might  safely  act ;  but  such  special  grounds  can  seldom  form 
the  basis  of  a  general  rule  ;  and  the  consideration  that  a  man  might 
in  particular  instances  trust  to  such  evidence,  would  supply  no  suffi- 
cient reason  for  the  general  reception  of  such  evidence  before  a  jury, 
who  would  usually  be  destitute  of  those  peculiar  means  of  judging  of 
the  credit  due  to  the  evidence  by  the  *aid  of  which  an  ordi-  r^p-i-i 
nary  individual  would  be  enabled  to  decide,  and  consequently 
be  peculiarly  liable  to  imposition  were  such  evidence  to  be  generally 
admissible. 

Hence  it  is,  that  except  in  the  instances  which  will  presently  be 

noticed,  where  a  rule  of  exception  can  be  established  to  the  contrary, 

the  laAv  excludes  all  mediate  or  hearsay  evidence  of  mere  declarations 

made  by  others  to  those  who  are  sworn  and  examined.     In  so  doing, 

5 


61  MEDIATE     EVIDENCE. 

the  trutli  may  sometimes  be  excluded,  but  ample  compensation  is 
made  by  the  further  exclusion  of  a  mass  of  evidence  which  would 
tend  to  deceive  and  mislead :  the  result  is,  on  the  whole,  greatly  on 
the  side  of  justice :  the  rule  obstructs  one  source  of  truth,  but  it  also 
excludes  a  flood  of  error. 

Next,  then,  in  what  instances,  and  under  what  sanction  does  the 
law  admit  secondary  mediate  evidence? 

In  the  first  place,  it  seems  to  be  a  general  rule,  that  where  a  wit- 
ness already  examined  in  a  judicial  proceeding  between  the  same 
parties  is  since  dead,  his  former  examination  is  admissible  as  secondary 
evidence ;  for  in  such  case  the  testimony  was  given  under  the  obliga- 
tions of  an  oath,  and  the  adversary  had,  or  might  have  had  the  bene- 
fit of  a  cross-examination.^ 

Where,  however,  the  party  against  whom  the  evidence  is  offered 
had  not  the  opportunity  to  cross-examine,  the  deposition  or  examina- 
tion is  usually  inadmissible;  at  least  its  inadmissibility  is  not  war- 
ranted by  the  rule  just  adverted  to.  On  these  grounds  it  is  that  the 
depositions  of  witnesses  taken  by  magistrates  in  cases  of  felony,  under 
the  statutes  1  &  2  Ph.  &  M.,  c.  13 ;  2  &  3  Ph.  &  M.,  c.  10 ;  and  7 
Geo.  IV.,  c.  64,  though  admissible  when  taken  in  the  presence  of  the 
prisoner,  who  has  thus  had  the  opportunity  to  cross-examine,  have 
been  held  to  be  inadmissible  when  taken  in  the  absence  of  the  pris- 
oner.*' It  is  again  to  be  observed,  that  where  a  party  against  whom 
r*eoi  s^^ch  evidence  is  offered  had  the  opportunity  to  *cross-examine, 
it  is  the  same  thing  in  effect  as  if  he  had  availed  himself  of 
the  o])portunity,  provided  it  was  taken  in  the  course  of  a  proceeding 
to  which  he  was  a  party,  for  otherwise  he  was  not  bound  to  pay  any 
attention  to  it. 

The  first  great  class  where  mediate  testimony  is  receivable  as  second- 
ary evidence  on  special  grounds,  although  the  statement  was  not  on 
oath,  and  although  the  adversary  had  no  opportunity  to  cross-examine, 
consists  of  the  declarations  made  by  persons  since  deceased,  on  the 
subject  of  pedigree,  custom,  boundary,  and  the  like,  where  from  the 
nature  of  the  subject-matter  of  the  declarations  and  situation  of  the 
parties  it  is  reasonably  to  be  presumed  that  they  knew  the  fact. 

In  the  first  ])hice,  the  fact  to  be  proved  must  be  of  a  public  nature; 

''  Vide  infra,  tit.  Detositions  ;  and  sec  Vol.  II.,  tit.  Detositions. 

'  But  see  Jioudereau  et  al.  v.  Montgomery  et  al.,  4  Wash.  C.  C.  Kep.  186 ; 
Elliott  V.  Piersol,  1  I'et.  o.j7. 

G. 


SECONDARY,    WHEN    ADMISSIBLE.  62 

otherwise  it  is  not  to  be  presumed  that  the  individual  from  whom  the 
tradition  was  derived  had  tlie  means  of  knowdedge. 

Secondly.  As  in  the  case  of  general  reputation,  such  evidence  must, 
in  all  cases  wdiere  any  question  of  public  concern  is  in  issue,  be  con- 
fined to  general  declarations,  to  the  exclusion  of  mere  declarations  as 
to  particular  facts. 

Thirdly.  Traditionary  evidence  as  to  rights  must  be  derived  fr.om 
those  persons  who  were  in  a  situation  to  know  what  the  rights  were ; 
and  in  the  case  of  pedigree,  declarations  are  not  admissible,  unless 
they  be  derived  from  such  as  were  connected  with  the  family. 

Fourthly.  As  evidence  of  this  description  partakes  of  the  weakness 
and  infirmities  of  hearsay  report/ its  credibility  depends  *mainly  r*po-] 
in  the  absence  of  all  temptation  to  misrepresent  the  facts:  it 
follows  that  it  cannot  be  trusted,  and  is  inadmissible,  under  circum- 
stances which  W'cre  likely  to  influence  and  bias  those  from  whom  the 
evidence  is  derived.  Upon  this  principle  it  has  been  held  that  a 
declaration  relating  to  a  pedigree  made  j^ost  litem  motam,  cannot  be 
received.''  But  in  the  case  of  Nicliolls  v.  ParTicr}  traditionary  evi- 
dence of  what  old  persons,  then  dead,  had  said  concerning  the  bound- 
aries of  the  parish  and  manor  (the  subject  of  the  action)  was  admitted 
in  evidence,  although  the  old  persons  were  parishioners,  and  claimed 

'  Grose,  J.,  in  the  case  of  Morewood  v.  Wood,  14  East  330,  states  the  case  of  a 
pedigree  which  was  tried  at  Winchester,  where  there  was  a  strong  reputation 
throughout  all  the  country  one  way,  and  a  gveat  number  of  persons  were  exam- 
ined to  it;  but  after  all,  the  whole  was  overturned,  and.proved  to  have  no  foun- 
dation whatsoever,  by  the  production  of  a  single  paper  from  the  Herald's  office  ; 
which  shows  (observed  the  learned  judge)  how  cautiously  this  sort  of  evidence 
ought  to  be  admitted.  See  also  Lord  Ellenborough's  observations,  1  M.  &  S.  (28 
E.  C.  L.  R.)  616-7,  where  he  observes  that  reputation  in  general  is  weak  evi- 
dence ;  and  of  Buller,  J.,  Morewood  v.  Wood,  14  East  330. 

^  Case  of  Berl-eley  Peerage,  4  Camp.  401 ;  Sussex  Peerage  case,  11  CI.  &  F.  85. 
See  the  cases  below,  tit.  Pedigree  ;  and  see  Rex  v.  Cotton,  3  Camp.  444,  cor. 
Dampier ;  where,  upon  an  indictment  against  an  occupier  of  a  farm,  for  not  re- 
pairing a  road  ratione  tenurce,  an  awai'd  made  many  years  before,  when  the  same 
subject  was  in  dispute  between  a  former  occupier  and  the  township,  was  rejected 
as  inadmissible,  on  the  ground  that  the  declarations  of  witnesses,  since  deceased,' 
made  before  the  arbitrator  on  that  occasion,  could  not  have  been  received,  hav- 
ing been  made  post  litem  motam,  and  that  the  opinion  of  the  arbitrator,  founded 
upon  such  testimony,  could  not  be  entitled  to  greater  credit.  It  is  vexata  qucestio 
whether  such  declarations  vaadiQ  post  litem  motam  would  not  be  admissible,  if  it 
could  be  shown  that  the  person  making  them  did  not  know  of  the  existence  of 
any  controversy.  See  Berkeley  Peerage  case,  Monkton  v.  Attorney-General,  2 
Russ.  &  M.  147. 

M4  East  331. 


63  MEDIATE     EVIDENCE. 

rights  of  common  on  the  wastes,  which  would  be  enlarged  by  their 
several  declarations,  there  not  appearing  to  be  any  dispute  at  the  time 
respecting  the  right  of  the  old  persons  making  the  declarations,  at  least 
no  litigation  pending:  so  that  those  persons  could  not  be  considered  as 
having  it  in  view  to  make  declarations  for  themselves  at  the  time; 
although,  in  fact,  the  boundary  had  been  in  long  dispute  between  the 
respective  parishes  and  manors,  and  intersecting  perambulations  had 
been  made  both  before  and  after  such  declarations  by  the  respective 
parties. 

Lastly,  as  in  the  case  of  general  reputation,  such  evidence  is  of  little 
or  no  weight,  unless  it  be  supported  and  confirmed  by  evidence  of 
the  actual  exercise  and  *enjoYment  of  the  right  to  which  such 
L       -J    traditionary  declaration  relates. 

In  the  next  place,  notwithstanding  the  general  rule,  that  the  mere 
declarations  of  a  person,  as  to  a  particular  fact,  are  not  evidence  of 
that  fact;  and  notwithstanding  the  limitations  by  Avhich  the  reception 
of  evidence  of  reputation  and  tradition  is  guarded,  particularly  those 
which  confine  the  admission  of  such  evidence  to  matters  of  some  pub- 
lic nature  and  interest,  and  exclude  reputation  and  tradition,  which 
relate  merely  to  particular  facts ;  there  are  some  cases  which  form 
exceptions  to  these  rules,  and  where  the  privacy  of  the  fact,  so  far 
from  excluding  the  hearsay  declaration  concerning  it,  seems  to  in- 
duce the  necessity  of  its  admission.  As  far  as  these  are  referable  to 
any  certain  principles  (for  some  of  them  have  been  looked  upon  as 
mere  anomalies  and. arbitrary  exceptions),™  they  seem  to  be  confined, 
for  the  most  part,  to  instances  of  facts  known  only  to  a  few  individu- 
als who  possessed  peculiar  means  of  knowledge,  and  consequently 
where,  if  the  declarations  of  such  individuals  were  not  admissible,  all 
evidence  on  the  subject  might  be  excluded.  They  are  divisible  into 
two  distinct  classes,  the  one  consisting  of  declarations  or  entries 
against  the  interest"  of  the  persons  making  them  ;  the  other,  of  entries 
maile  by  parties  in  the  usual  course"  of  their  business. 

AVith  respect  to  the  first  of  these  classes,  the  reception  of  such  de- 
claration or  entry  seems  to  have  been  founded  upon  the  presumption 
that  the  party  would  not  have  made  it  contrary  to  his  own  interest, 

"  See  Lord  Kcnyon's  observation,  5  T.  R.  123. 

°  See  the  firnt  of  tliese  claKweH  fully  discussed  and  explained  in  Ilighham  v. 
liidi/wa;/,  ,'J  Sirilth's  Leading  Cases  1S3,  and  the  notes  to  that  case. 

"  See  this  cIuhh  fully  discussed  in  Price  \.  Lord  Torrington,  1  Smith's  Leading 
Cases  139,  and  the  notes  to  that  case.  It  seems  doul)tful  whether  m  declaration 
made  in  the  usual  course  of  business,  though  taken  down  at  the  time  by  a  third 
person  in  such  course,  would  be  evidence :  see  Brain  v.  Preece,  11  M.  &  W.  773. 


DECLARATIONS    AGAINST     INTEREST.  65 

unless  it  had  been  true.  *The  absence  not  merely  of  any  in-  [-:upc:-| 
terest  to  falsify  it,  but  the  circumstance  of  its  being  actually 
adverse  to  his  interest,  creates  the  strongest  improbability  that  it  is 
a  misrepresentation,  and  justly  is  considered  to  afford  a  sufficient 
guarantee  for  its  accuracy  to  render  it  admissible  as  evidence  when 
the  person  who  made  it  is  no  more.  Thus,  where  a  deceased  steward 
has  admitted  by  entries  in  his  accounts,  the  receipt  of  rents,^  or 
churchwardens  have  made  similar  entries  of  the  receipt  of  moneys 
from  the  inhabitants  of  a  sub-division  of  the  parish,  for  parochial 
purposes,  such  admissions  have  been  held  to  be  evidence  of  payments 
for  those  purposes. "^  And  upon  similar  grounds,  the  declaration  of  a 
deceased  tenant,  that  he  held  the  land  under  a  particular  person,  was 
held  to  be  admissible  to  prove  the  seisin  of  that  person  ;  such  a  decla- 
ration being  against  his  interest,  not  only  because  it  tended  to  nega- 
tive the  presumption  of  his  being  the  freeholder,  which  his  possession 
would  create,  but  also,  since  it  would  have  been  evidence  against  him, 
by  the  landlord,  in  an  action  for  use  and  occupation.' 

The  second  class  of  exceptions  to  the  general  rule,  consists  of 
instances  where  such  evidence  derives  credit  from  circumstances, 
independently  of  the  consideration  of  an  interest  to  the  contrary 
on  the  part  of  the  person  who  made  it,  viz.  :  that,  it  was  made  by  a 
party  in  the  usual  course  of  his  profession,  trade  or  business.  An 
entry  so  made  obviously  derives  its  claim  to  credit  from  a  considera- 
tion of  the  great  improbability  that  such  a  pei'son  would,  without  any 
assignable  motive,  wantonly  make  an  entry  of  a  false  fact.  The 
bare  possibility  of  the  casual  *fabrication  of  a  false  entry, 
made  for  the  purpose  of  future  evidence,  could  have  little  ■-  -' 
weight  Avhen  compared  with  the  importance  of  the  object  to  be  ulti- 
mately attained.  In  such  cases,  therefore,  no  distinction  can  be 
made  on  the  supposition  or  probability  of  fraud,  in  the  one  case, 
rather  than  the  other :  it  must,  to  prevail,  depend  on  the  position, 
that  where  the  entry  contains  no  acknowledgment  against  the  interest 
of  the  vouchee,  there  exists  a  greater  probability  that  it  was  wantonly, 
carelessly,  or  mistakenly  made ;   this,  however,  must  depend  on  the 

P  Barry  v.  Bebhington,  4  T.  R.  514. 

«  Stead  V.  Ileaion,  4  T.  R.  669. 

"■  Uncle  V.  Watson,  4  Taunt.  16.  See  also  Perigalv.  Nicholson,  1  Wightw.  63. 
See  also  Iligham  v.  Ridgwat/,  10  East  109  ;  2  Smith's  Lead.  Cases  183 ;  where 
it  was  held  that  an  entry  made  by  a  deceased  man-midwife  that  he  had  delivered 
a  woman  of  a  child  on  a  particular  day,  and  referring  to  his  ledger,  in  which  the 
charge  for  his  attendance  was  marked  paid,  was  evidence  on  the  trial  of  an  issue 
as  to  the  age  of  the  child. 


66  INDIRECT    EVIDENCE. 

circumstances  under  -whicli  it  was  made;  if  it  was  a  written  entry 
made  in  the  usual  course  of  a  man's  profession  or  trade,  in  the 
absence  of  fraud,  it  carries  with  it  a  reasonable  degree  of  probability 
that  it  was  made  according  to  the  truth. 

As  the  exact  rules  by  which  the  reception  of  these  two  classes  of 
evidence  is  governed  can  only  be  thoroughly  explained  by  reference 
to  the  decisions  on  the  subject  they  will  be  detailed  at  a  future 
opi^ortunity ;  for  the  present  it  will  suffice  to  make  a  few  observations 
on  the  general  principle  which  ought  to  regulate  the  admissibility  of 
such  evidence. 

In  the  first  place,  as  such  evidence  is  in  general  excluded  on  the 
grounds  already  adverted  to,  it  is  essential  that  some  special  neces- 
sity should  exist  in  the  particular  class  of  cases  for  deviating  from 
the  general  rule,  and  that  it  should  never  be  resorted  to,  until  the 
higher  degree  of  evidence  which  the  party  himself  might  have  given 
be  shown  to  be  no  longer  attainable  in  consequence  of  his  death. 

And  even  then,  in  order  to  warrant  the  reception  of  such  secondary 
evidence,  it  is  essential  that  circumstances  should  exist  which  afford 
a  reasonable  presumption  that  the  person  who  spoke  or  wrote  that 
which  is  offered  in  evidence  had  means  of  knowing  the  fact,  and  that 
he  was  not  likely  to  have  misrepresented  it. 


[*67]  ^CHAPTER  IV. 

INDIRECT  EVIDENCE. 

Next,  as  to  the  admission  of  indirect  evidence. 

Having  now  briefly  noticed  the  general  principles  which  govern 
the  reception  of  direct  evidence  to  prove  a  disputed  fact  by  the  aid 
of  testimony,  whether  immediate  or  mediate,  we  are  next  to  con- 
sider those  which  govern  the  admission  of  indirect  evidence  :  that 
is,  of  facts  collateral  to  the  disputed  fact,  but  from  the  existence  of 
which  the  truth  of  the  fact  in  dispute  may  be  inferred. 

The  necessity  for  resorting  to  indirect  or  circumstantial  evidence 
is  manifest.  It  very  frequently  happens  that  no  direct  and  positive 
testimony  can  be  ])rocured ;  and  often,  where  it  can  be  had,  it  is 
necessary  to  try  its  accuracy  and  weight  by  comparing  it  with  the 
surroundinj'  circumstances. 


INDIRECT    EVIDENCE.  67 

The  want  of  written  documents,  the  treachery  and  fallaciousness 
of  the  human  memory,  the  great  temptations  which  perpetually 
occur  to  exclude  the  truth,  by  the  suppression  of  evidence,  or  the 
fabrication  of  false  testimony,  render  it  necessary  to  call  in  aid  every 
means  of  ascertaining  the  truth  upon  which  the  law  can  safely  rely. 

Where  direct  evidence  of  the  fact  in  dispute  is  wanting,  the  more 
the  jury  can  see  of  the  surrounding  facts  and  circumstances,  the 
more  correct  their  judgment  is  likely  to  be.  It  is  possible  that 
some  circumstances  may  be  misrepresented,  or  acted  with  a  view  to 
deceive;  but  the  whole  context  of  circumstances  cannot  be  fabricated; 
the  false  invention  must  have  its  boundaries,  where  it  may  be  com- 
pared with  the  truth:  and,  therefore,  the  more  extensive  the  view  of 
the  jury  is  of  all  the  minute  ^circumstances  of  the  transaction,  r;!cpQ-| 
the  more  likely  will  they  be  to  arrive  at  a  true  conclusion. 
Truth  is  necessarily  consistent  with  itself;  in  other  words,  all  facts 
which  really  did  happen,  did  actually  consist  and  agree  Avith  each 
other.  If  then  the  circumstances  of  the  case,  as  detailed  in  evidence, 
are  incongruous  and  inconsistent,  that  inconsistency  must  have  arisen 
either  from  mistake,  from  wilful  misrepresentation,  or  from  the 
correct  representation  of  facts  prepared  and  acted  with  a  view  to 
deceive.  From  Avhatever  source  the  inconsistency  may  arise,  it  is 
easy  to  see  that  the  greater  the  number  of  circumstances  which  are 
exhibited  to  the  jury,  the  more  likely  will  it  be  that  the  truth  will 
prevail :  since  the  stronger  and  more  numerous  will  be  the  circum- 
stances on  the  side  of  truth.  It  will  be  supported  by  facts,  the 
eifect  of  which  no  human  sagacity  could  have  foreseen,  and  which 
are  therefore  beyond  the  reach  of  suspicion  :  whilst,  on  the  other 
hand,  fraudulent  evidence  must  necessarily  be  either  confined  to  a 
few  facts,  or  be  open  to  detection,  by  affording  many  opportunities 
of  comparing  it  with  that  which  is  known  to  be  true.  Fabricated 
facts  must,  in  their  very  nature,  be  such  as  are  likely  to  become 
material.  Hence  it  has  frequently  been  said,  that  a  Avell-supported 
and  consistent  body  of  circumstantial  evidence  is  sometimes  stronger 
than  even  direct  evidence  of  a  fact ;  that  is,  the  degree  of  uncertainty 
which  arises  from  a  doubt  as  to  the  credibility  of  direct  Avitnesses, 
may  exceed  that  which  arises  upon  the  question  Avhether  a  proper 
inference  has  been  made  from  facts  Avell  ascertained.  A  witness  may 
have  been  suborned  to  give  a  false  account  of  a  transaction  to  which 
he  alone  was  privy,  and  the  whole  rests  upon  the  degree  of  credit  to 
be  attached  to  the  veracity  of  the  individual ;  but  Avhere  a  great 
number  of  independent  facts  conspire  to  the  same  conclusion,  and 


68  INDIRECT    EVIDENCE. 

are  supported  hj  many  unconnected  witnesses,  the  degree  of  credi- 
bility to  be  attached  to  the  evidence  increases  in  a  very  high  pro- 
portion, arising  from  the  improbability  that  all  those  witnesses  should 
be    mistaken    *or   perjured,   and    that   all   the    circumstances 

r*69"l  r      J  :> 

L  -■  should  have  happened  contrary  to  the  usual  and  ordinary 
course  of  human  affairs.  The  consideration,  however,  of  the  credit 
due  to  circumstantial  evidence,  belongs  to  another  place  ;*  at  present, 
the  subject  is  mentioned  merely  with  a  view  to  illustrate  the  neces- 
sity of  opening  to  a  jury  the  most  ample  view  of  all  the  facts  which 
belong  to  the  disputed  transactions ;  leaving  the  consideration  of  the 
importance  due  to  such  evidence  to  be  examined  hereafter. 

Agreeably  to  this  notion  and  according  to  the  simplicity  of  the 
ancient  law,  it  was  provided  that  every  trial  should  be  had  before  a 
jury  who  lived  so  near  to  the  scene  of  the  disputed  transaction  that 
they  might  reasonably  be  supposed  to  possess  actual  and  personal 
knowledo-e  of  the  circumstances,  to  have  heard  and  seen  what  was 
done.  Later  experience  has  shown  that  a  knowledge  of  the  facts  to 
be  tried,  such  as  a  residence  in  the  neighborhood  supplies,  affords 
but  an  imperfect  and  dubious  light  for  the  investigation  of  truth ; 
and  that  justice  suffers  more  from  the  prejudices  and  false  notions  of 
the  facts  which  a  residence  in  the  neighborhood  usually  affords,  than 
it  gains  in  point  of  certainty  from  a  previous  knowledge,  on  the  part 
of  the  jury,  of  the  parties  or  of  the  circumstances  of  the  case.  At 
this  day,  therefore,  it  is  no  longer  necessary,  either  in  civil  or  in 
criminal  cases,  that  the  jury  should  be  returned  from  the  vicinage  ; 
they  are  taken  Avithout  distinction  from  the  body  of  the  county  at 
large ;  and  being  in  general  strangers  to  the  litigant  parties  and  to 
the  facts  in  dispute,  may  be  presumed  to  discharge  their  important 
duties  without  partiality  or  prejudice.  Still,  however,  the  end  to  be 
attained  is  the  same,  although  the  means  of  attaining  it  are  different ; 
it  is  still  the  great  object  of  the  law  that  the  jury  should  be  fully 
possessed  of  all  the  facts  and  circumstances  of  the  case ;  and  as  they 
r*7A-|  have  *not  been  actually  witnesses  of  the  transaction,  either 
in  fact  or  in  contemplation  of  law,  the  scene  is  to  be  exhibited 
to  them  by  the  only  means  of  recalling  a  past  transaction,  that  is, 
by  oral  evidence  and  written  documents,  and  the  jury  are  to  collect 
the  facts  by  the  senses  and  perceptions  of  others,  to  whose  account 
credit  is  due. 

In  consequence,  too,  of  the  frequent  failure  of  direct  and  positive 
evidence,  recourse  must  be  had  to  presumptions  and  inferences  from 
*  Vide  infra.,  tit.  Circumstantial  Evidence. 


INDIRECT    EVIDENCE.  70 

facts  and  circumstances  which  are  known,  and  wliich  serve  as  indica- 
tions, more  or  less  certain,  of  those  which  are  disputed  and  contested. 
It  is  consequently  a  matter  of  the  highest  importance  to  consider  the 
grounds,  nature  and  force  of  such  indirect  evidence :  and  to  inquire 
what  facts,  either  singly  or  collectively,  are  captihle  of  supplying  such 
inferences  as  can  safely  be  acted  upon.*" 

Presumptions,  and  strong  ones,  are  continually  founded  upon 
knowledge  of  the  human  character,  and  of  the  motives,  passions, 
and  feelings,  by  which  the  mind  is  usually  influenced.  Experience 
and  observation  show  that  the  conduct  of  mankind  is  governed  by 
general  laws,  which  operate,  under  similar  circumstances,  with  almost 
as  much  regularity  and  uniformity  as  the  mechanical  laws  of  nature 
themselves.  The  effect  of  particular  motives  upon  human  conduct  is 
the  subject  of  every  man's  observation  and  experience,  to  a  greater  or 
less  extent;  and  in  proportion  to  his  attention,  means  of  observation, 
and  acuteness,  every  one  becomes  a  judge  of  the  human  character, 
and  can  conjecture  on  the  one  hand,  what  would  be  the  effect  and 
influence  of  motives  upon  any  individual  under  particular  circum- 
stances, and  on  the  other  hand,  is  able  to  presume  and  infer  the  motive 
by  which  an  agent  was  actuated,  from  the  particular  course  of  con- 
duct which  he  adopted.  Upon  this  ground  it  is  that  evidence  is  daily 
*adduced  in  courts  of  justice  of  the  particular  motives  by  r^rr-,-, 
"which  a  party  was  influenced,  in  order  that  the  jury  may  infer 
what  his  conduct  was  under  those  circumstances ;  and  on  the  other 
hand,  juries  are  as  frequently  called  upon  to  infer  what  a  man's 
motives  and. intentions  have  been,  from  his  conduct  and  his  acts. 
All  this  is  done,  because  every  man  is  presumed  to  possess  a  know- 
ledge of  the  connection  between  motives  and  conduct,  intention  and 
acts,  which  he  has  acquired  from  experience,  and  to  be  able  to  pre- 
sume and  infer  the  one  from  the  other. 

The  presumption  of  conduct,  or  of  any  particular  act,  from  the 
motives  by  which  the  supposed  agent  was  known  to  be  influenced,  is 
more  or  less  cogent  as  the  motive  itself  was  stronger  or  weaker,  and 
as  experience  has  proved  it  to  be  more  or  less  efficacious  in  affecting 
a  man's  conduct.  The  presumption  of  particular  intention,  from  a 
man's  acts  and  conduct,  is  more  or  less  forcible,  according  to  their 
nature,  and  their  greater  or  less  tendency  to  effect  the  supposed  in- 
tention, and  the  improbability,  derived  from  experience,  that  they 
could  have  resulted  from  any  other  motive,  or  have  been  done  with 
any  other  intention.  Presumptions  of  this  nature  are  of  most  essen- 
''  See  Vol.  II.,  tit.  Presumptions. 


71  INDIRECT    EVIDENCE. 

tial  importance  in  criminal  cases.  Where  a  heinous  crime  has  been 
committed,  as,  for  instance,  murder  by  means  of  poison,  and  where 
it  is  obvious  that  theft  was  not  the  object  of  tlie  guilty  party,  it  is 
essential  to  inquire  Avhether  the  accused  was  influenced  by  any  motive 
to  commit  such  an  offence;  the  absence  of  all  motive,  whether  of 
avarice  or  revenge,  affords  a  strong  presumption  of  innocence,  where 
the  fact  is  in  other  respects  doubtful,  because  experience  of  human 
nature  shows  that  men  do  not  commit  mischief  wantonly  and  gratui- 
tously, without  any  prospect  of  advantage ;  still  less  do  they  perpe- 
trate enormous  crimes,  and  subject  themselves  to  the  severest  penal- 
ties of  the  law,  without  the  strongest  motives :  when,  on  the  con- 
trary, other  strong  presumptions  appear  against  the  accused,  the 
knowledge  that  he  was  influenced  by  a  very  strong  motive  *to 
L  "-^  commit  such  a  crime,  must  of  necessity  greatly  add  to  the 
probability  of  his  guilt. 

In  criminal  cases  a  question  usually  arises  as  to  the  intention  of 
the  accused,  since  it  is,  in  general,  the  guilty  intention  with  which 
an  act  is  done  that  renders  it  criminal ;  and  in  numerous  instances 
a  particular  intention  is  made  an  essential  ingredient  in  the  statu- 
tory offence.  But  intention,  which  is  the  mere  internal  and  invisible 
act  or  resolve  of  the  mind,  cannot  be  judged  of  except  from  exter- 
nal and  visible  acts ;  and  in  all  such  cases,  and  many  others,  a  man's 
object  and  motives  must  be  inferred  from  his  conduct ;  and  what  par- 
ticular acts  and  conduct  are  suSicient  to  indicate  the  guilty  intention 
which  is  imputed  to  the  accused,  is  a  question  of  fact  to  be  decided 
by  those  who  are  conversant  in  human  affairs,  and  whose  experience 
enables  them  to  judge  of  the  connection  between  conduct  and  in- 
tention. 

In  many  of  the  common  concerns  of  life  a  man  may  act  from  a 
complication  of  motives  which  human  sagacity  cannot  unravel;  the 
secret  workings  of  which  Omniscience  alone  can  understand ;  but  in 
the  case  of  a  crime  defined  by  the  law,  and  where,  consequently,  both 
the  act  itself  and  the  intention  are  simple  and  definite,  so  much 
difficulty  does  not  prevail  in  the  ascertainment  of  intention  ;  in  such 
Instances  it  is  reasonable  to  infer,  that  a  man  intended  and  contem- 
plated that  end  and  result  which  is  the  natural  and  immediate  con- 
sequence of  the  means  useil  by  him ;  and  this  is  the  ordinary 
presumption  of  law.  In  criminal  proceedings,  the  consideration 
of  the  conduct  of  the  accused  will,  in  other  respects,  be  found  to  be 
of  great  importance  in  determining  upon  his  guilt  or  innocence, 
where  there  is  either  no  direct  evidence  of  the  fact,  or  such  as  can- 
not standing  alone  be  safely  relied  upon. 


INDIRECT    EVIDENCE.  72 

The  conduct  which  may  afford  an  inference  in  such  a  case,  may 
consist  either  in  the  seeking  opportunities  and  means  for  committing 
such  an  act,  or  in  attempting  to  avoid  suspicion  or  injury  by  flight, 
or  in  concealing  *evidence  of  guilt,  or  even  in  sliowing  an  r-jc-o-i 
anxiety  to  do  so;  for  it  is  certain  that  the  guilty  person  must 
have  had  the  opportunity  and  means  of  committing  the  offence;  and 
it  is  probable  that  he  would  previously  watch  for  such  an  opportu- 
nity, and  he  must  have  procured  the  means.  Again,  it  is  also  pro- 
bable that  the  guilty  person,  goaded  by  the  stings  of  conscience,  or 
at  least  actuated  by  fear  of  detection  and  of  punishment,  would  use 
every  effort  within  his  power  to  avoid  suspicion,  or  at  least  inquiry ; 
and  experience  fully  proves  that  means,  in  the  hour  of  terror  and 
alarm,  are  often  resorted  to  by  the  guilty,  in  the  hope  of  providing 
security,  which,  so  far  from  preventing  or  lulling  suspicion,  provoke 
and  excite  it,  and  turn  out  to  be  forcible  evidence  of  guilt.  Flight; 
the  fabrication  of  false  and  contradictory  accounts,  for  the  sake  of 
diverting  inquiry;  the  concealment  of  the  instruments  of  violence; 
the  destruction  or  removal  of  proofs  tending  either  to  show  that  an 
offence  has  been  committed,  or  to  ascertain  the  offender,  are  circum- 
stances indicatory  of  guilt,  since  they  are  acts  to  which  sovie  motive 
is  attributable,  and  are  such  as  are  not  likely  to  have  been  adopted 
by  an  innocent  man  ;  but  such,  on  the  contrary,  as  according  to  ex- 
perience are  usually  resorted  to  by  the  guilty.  A  full  confession," 
of  guilt,  although  it  be  but  presumptive  evidence,  is  one  of  the  surest 
proofs  of  guilt,  because  it  rests  upon  the  strong  presumption  that  no 
innocent  man  would  sacrifice  his  life^  liberty,  or  even  his  reputation, 
by  a  declaration  of  that  which  was  untrue.^     The  presumption   im- 

*  See  tit.  Admisson — Confession. 

^  Confessions  under  the  influence  of  hope  or  fear  are  not  admissible  :  State  v. 
York,  37  N.  H.  175  ;  State  v.  Wentworth,  Ibid.  196  ;  Shifflefs  Case,  U  Grat.  652  ; 
State  V.  George,  5  Jones  (Law)  233  ;  Bob  v.  State,  32  Ala.  560 ;  Meyer  v.  State, 
19  Arkansas  156;  Fouts  v.  State,  8  Ohio  (N.  S.)  98;  State  v.  Fisher,  6  Jones 
(Law)  473;  Simon  v.  State,  36  Miss.  636;  Cain  v.  State,  18  Tex.  387;  Ruther- 
ford V.  Comm.,  2  Mete.  (Ken.)  387.  Although  confessions  improperly  obtained 
are  not  admissible,  yet  any  facts  brought  to  light  in  consequence  of  such  con- 
fessions may  be  properly  received  in  evidence:  Jane  v.  Comm.,  2  Mete.  (Ken.) 
30.  That  confessions  must  be  voluntary,  without  any  inducements  held  out: 
see  State  v.  Cook,  15  Rich.  (Law)  29 ;  Joe  v.  State,  38  Ala.  422  ;  Frank  v.  State, 
39  Miss.  705  ;  Love  v.  State,  22  Ark.  336  ;  McGlothlin  v.  State,  2  Cald.  223  ; 
Butler  V.  Comm.,  2  Duvall  435;  Hudson  v.  Comm.,  Ibid.  531  ;  Price  v.  State,  18 
Ohio  St.  418  ;  Flanagin  v.  State,  25  Ark.  92 ;  State  v.  Staley,  14  Minn.  105 ; 
Comm.  V.  Curtis,  97  Mass.  574 ;    O^Brien  v.  People,  48  Barb.  274 ;  Dinah  v. 


73  ■  INDIRECT    EVIDENCE. 

mediately  ceases  as  soon  as  it  appears  that  the  supposed  confession 
was  made  under  the  influence  of  threats  or  of  promises,  which  render 
it  uncertain  whether  the  admissions  of  the  accused  resulted  from  a 
consciousness  of  guilt,  or  were  wrung  from  a  timid  and  apprehensive 
mind,  deluded  by  promises  of  safety,  or  subdued  by  threats  of  vio- 
lence or  punishment.  It  may  be  proper  also  to  remark  in  this  place, 
that   some   of  those   presumptions   which    have   lately  been    touched 

*upon  are  to  be  regarded  with  great  caution  :  for  it  sometimes 
r*741  •  .... 

L       -•    happens  that  an  innocent,  but  weak  and  injudicious  person, 

will  take  very  undue  means  for  his  security,  when  suspected  of  a  crime. 
A  strong  illustration  of  this  is  afforded  by  the  case  of  the  uncle, 
mentioned  by  Lord  Hale.  His  niece  had  been  heard  to  cry  out, 
"  Good  uncle,  do  not  kill  me !"  and  soon  afterwards  disappeared  ; 
and  he  being  suspected  of  having  destroyed  her  for  the  sake  of  her 
property,  was  required  to  produce  her  before  the  justice  of  assize  : 
he  being  unable  to  do  this  (for  she  had  absconded),  but  hoping  to 
avert  suspicion,  procured  another  girl  resembling  his  niece,  and 
attempted  to  pass  her  off  as  such.  The  fraud  was,  however,  detected ; 
and,  together  with  other  circumstances,  appeared  so  strongly  to  indi- 
cate the  guilt  of  the   uncle,  that  he  was  convicted  and  executed  for 

State,  39  Ala.  359 ;  Miller  v.  State,  40  Ibid.  54 ;  Miller  v.  People,  39  111.  457  ; 
Aaron  v.  State,  39  Ala.  75 ;  Williams  v.  State,  Ibid.  532  ;  Young  v.  Comm.,  8 
Bush  366 ;  Cady  v.  State,  44  Miss.  332 ;  Beeker  v.  Crow.  7  Bush  198  ;  Thompson 
V.  Comm.,  20  Gratt.  724  ;  Derby  v.  Derby,  21  N.  J.  Eq.  36  ;  Frain  v.  State,  40  Ga. 
529 ;  Austin  v.  State,  51  111.  236  ;  State  v.  Brockman,  46  Mo.  566 ;  People  v. 
Phillips,  42  N.  Y.  200 ;  State  v.  Squires,  48  N.  H.  364. 

Discoveries  of  facts  which  have  been  made  in  consequence  of  inadmissible 
confessions  are  competent  evidence :  Mountain  v.  State,  40  Ala.  344 ;  People  v. 
Jones,  32  Cal.  80:  People  v.  Noy  Yen,  34  Cal.  176 :  Frederick  v.  State,  3  W.  Va. 
695;  McGlothlin  v.  State,  2  Cald.  223  ;  Selcidge  v.  State,  30  Te.x.  60. 

Confessions  obtained  by  artifice  or  deceit  are  iidinissible :  Comm.  v.  Hanlon, 
3  Brewst.  461. 

The  whole  confession  must  be  taken  toii;other:  Conner  v.  State,  34  Tex.  659  ; 
Crawford  v.  Slate,  4  Cald.  190;  State  v.  Worthinyton,  64  N.  C.  594;  Grisivold 
V.  State,  24  Wise.  144;  State  v.  Fuller,  39  Vt.  75.  When  the  defendant  is  in- 
duced to  iiiiike  confessions  under  a  promise  that  he  will  not  be  prosecuted,  and 
he  afterwards  makes  additional  confessions,  they  cannot  be  used  against  him 
unless  it  be  shown  by  the  best  evidence  that  the  motive  which  had  induced  the 
first  confession  had  ceased  to  operate :  State  v.  Loiohorne,  66  N.  C.  538  ;  Strady 
v.  State,  5  Cald.  300.  Statements  made  in  the  presence  of  one  under  arrest  on  a 
criminal  cliar;^c,  to  whicli  the  prisoner  makes  no  reply,  are  not  admissible: 
Comm.  v.  Walker,  V.',  Allen  570  ;  People  v.  McCrea,  32  Cal.  98.  Where  a  witness 
on  a  criminal  trial,  who  testifies  to  a  confession,  did  not  understand  all  that  the 
prisoner  said,  no  part  is  admissible :  People  v.  Gilabert,  39  Cal.  663. 


PRESUMPTIONS.  74 

the  supposed  murder  of  the  niece,  "who,  as  it  afterwards  turned  out, 
Avas  still  living. 

In  civil  cases  also,  the  most  important  presumptions  (as  will  be 
afterwards  more  fully  seen)  are  continually  founded  upon  the  conduct 
of  the  parties  :  if,  for  instance,  a  man  suffer  a  great  length  of  time  to 
elapse  without  asserting  the  claim  which  he  at  last  makes,  a  pre- 
sumption arises,  either  that  no  real  claim  ever  existed,  or  that,  if  it 
ever  did  exist,  it  has  since  been  satisfied  f  because,  in  the  ordinary 
course  of  human  affairs,  it  is  not  usual  to  allow  real  and  well-founded 
claims  to  lie  dormant.  So  the  uninteri'upted  enjoyment  of  property 
or  privileges  for  a  long  space  of  time  raises  a  presumption  of  a  legal 
right ;  for  otherwise  it  is  probable  that  the  enjoyment  would  not  have 
been  acquiesced  in.®  Upon  the  presumption  that  after  a  lapse  of 
six  years  a  debt  on  simple  contract  has  been  satisfied,  the  Legislature 
seems  to  have  founded  the  ^provision  in  the  Statute  of  Limi-  r;c7r-| 
tation  ;  a  presumption  liable  to  be  rebutted  by  proof  of  a 
promise  to  pay  the  debt,  or  an  acknowledgment  that  it  still  remains 
due,  made  within  the  six  years. ^ 

The  conduct  of  a  party  in  omitting  to  produce  that  evidence,  in 
elucidation  of  the  subject-matter  in  dispute,  which  is  within  his 
power,  and  which  rests  peculiarly  within  his  own  knowledge,  fre- 
quently affords  occasion  for  presumption  against  him  ;  since  it  raises 
a  strong  suspicion  that  such  evidence,  if  adduced,  would  operate  to 
his  prejudice.  So  forcible  is  the  nature  of  this  presumption,  that  the 
law  founds  upon  it  a  most  important  elementary  rule,  which  excludes 
secondary  evidence  where  evidence  of  higher  degree  might  have  been 
adduced;  and  this  it  does,  because  it  is  probable  that  a  party  wdio 
withholds  the  best  and  most  satisfactory  evidence  from  the  considera- 
tion of  the  jury,  and  attempts  to  substitute  other  and  inferior 
evidence  for  it,  does  so  because  he  knows  that  the  better  evidence 
would  not  serve  his  purpose.^ 

Upon  the  same  principle,  juries  are  called  upon  to  raise  an  infer- 
ence in  favor  of  a  defendant  in  a  criminal  case  from  the  goodness  of 
his  character  in  society  ;  a  presumption  too  remote  to  weigh  against 

^  See  Vol.  II.,  tit.  Presumptions — Limitations — Prescription. 

*  Where  a  party  neglects  to  take  out  execution  within  a  year  after  his  judg- 
ment, he  must,  in  general,  revive  it  by  scire  facias  before  he  can  proceed  to 
execution  ;  and  this  is  founded  upon  a  presumption  that  the  debt  or  damages 
have  in  the  meantime  been  paid. 

^  See  tit.  Limitations.  Such  a  promise  to  be  available,  must  now  be  in 
writing. 

»  Vide  Infra,  tit.  Best  Evidence. 


75  INDIRECT    EVIDENCE. 

evidence  ■whicli  is  in  itself  satisfactory,  and  wliicli  ought  never  to 
have  any  weiglit  except  in  a  doubtful  case.''  ^ 

Upon  similar  grounds,  presumptions  may  be  derived  from  tlie 
artificial  course  and  order  of  human  affairs  and  dealings,  wherever 
any  such  course  and  order  exist ;  because,  in  the  absence  of  any 
reason  to  suppose  the  contrary,  a  probability  arises  that  the  usual 
course  of  dealing  has  been  adopted.  Hence  presumptions  are 
founded  upon  the  course  of  trade,  the  course  of  the  post,  the  customs 
of  a  particular  trade,  or  of  a  particular  class  of  people,  and 
L  J  *even  the  course  of  conducting  business  in  the  concerns  of  a 
private  individual,  to  prove  a  particular  act  done  in  the  usual  routine 
of  business.'  ^ 

''  See  tit.  CuARACTER.     It  seems  to  be  the  last  remnant  of  compurgation. 
^  See  Lord  Torrington' s  case,  1  Salk.  !2<S5  ;  1  Smith's  Leading  Cases  139. 

^  Evidence  of  the  general  character  of  the  defendant  is  admissible  in  his  favor 
in  a  criminal  prosecution  ;  but  it  is  entitled  to  little  weight,  unless  when  the 
fact  is  doubtful  or  the  testimony  merely  presumptive  :  State  v.  Wells,  C'oxe 
424  ;  United  States  v.  Bouderbush,  1  Baldw.  514 ;  Bennet  v.  State,  8  Humph. 
118  ;  Commonwealth  v.  Webster,  5  Cush.  295  ;  Acldey  v.  People,  9  Barb.  S.  C. 
Rep.  609 ;  Schaller  v.  State,  14  Mo.  502 ;  Harrington  v.  State,  19  Ohio  264 ;  Long 
V.  State,  11  Fla.  295;  State  v.  Cresson,  38  Mo.  372.  But  evidence  of  bad 
character  is  not  admissible  against  him,  unless  in  rebuttal  of  testimony  adduced 
by  him:  People  v.  White,  14  Wend.  Ill  ;  People  v.  Bodine,  1  Edm.  Sel.  Cas. 
36.  And  vfhen  such  rebutting  evidence  is  allowed,  the  witnesses  must  be  con- 
fined to  the  defendant's  character  before  he  was  accused  of  the  crime  in  ques- 
tion :  Martin  v.  Simpson,  4  McCord  262. 

In  civil  cases  evidence  of  the  general  character  of  a  party  is  admissible  only 
when  it  is  put  in  issue,  by  the  pleadings:  Anderson  v.  Long,  10  S.  &  R.  55; 
Atkinson  v.  Graham,  5  Watts  411  ;  Fowler  \.  JEtna  Ins.  Co.,  6  Cow.  673; 
Potter  V.  Webb,  6  Greenl.  14;  Humjihrey  v.  Humphrey,  7  Conn.  116;  Gough  v. 
St.  John,  16  Wend.  646  ;  Ward  v.  Herndon,  5  Port.  352;  Seneis  v.  Plunket,  1 
Strobh.  372 ;  Thayer  v.  Boyle,  30  Me.  475 ;  McKinney  v.  Rhoad,  5  Watts  343 ;  Nash  v. 
Gilkeson,  5  S.  &  11.  352 ;  Morris  v.  Hazlewood,  1  Bush  208.  In  civil  suits,  evidance 
of  good  character  is  not  admissible  to  rebut  imputations  of  fraud  or  misconduct: 
Boardman  v.  Woodman,  47  N.  H.  120.  After  an  attempt  to  assail  the  charac- 
ter of  a  plaintiff  in  an  action  of  slander  he  may  prove  his  good  character,  that 
being  an  action  in  which  character  is  put  in  issue,  being  part  of  the  allegation 
of  the  narr.:  Holly  v.  Burgess,  9  Ala.  728  ;  Wiuebiddle  v.  Porterfield,  9  Barr 
J  37  ;  Petrie  v.  Pose,  1  W.  &  S.  364;  Shmyer  v.  Miller,  3  W.  Ya.  158. 

*  "I  am  myself,"  says  Story,  J.,  "  no  friend  to  the  almost  indiscriminate  habit 
of  late  years  of  sotting  up  particular  usages  or  customs  in  almost  all  kinds  of 
business  and  trade,  to  control,  vary  or  annul  the  general  lialiilities  of  parties, 
under  the  common  law  as  well  as  uiiilcr  tin;  (•oiniiicrcial  law.  It  lias  long  ap- 
peared to  me,  tlnit  there  is  no  small  danger  in  admitting  such  loose  and  incon- 
clusive usages  and  customs,  often  unknown  to  |i;r,ticular  parties  and  always 
iablo  to  great   misunderstandings  and   misiiifcrjuctations  and  abuces,   to  out- 


PRESUMPTIONS.  76 

In  all  such  cases  tlic  course  of  dealing  may  be  proved  before  the 
jury,  and  is  evidence  in  matters  connected  with  it.  The  usual  time 
of  credit  in  a  particular  trade  is  evidence  to  show  that  goods  were 
sold  at  that  credit ;  the  course  of  the  post  is  evidence  to  show  that 
a  particular  letter,  proved  to  have  been  put  into  the  post-office,  was 
received  in  the  usual  time  by  the  party  to  whom  it  was  directed. 
The  ground  of  presumption  in  this  and  a  multitude  of  similar  in- 
stances is,  that  where  a  regular  course  of  dealing  has  once  been 
established,  that  which  has  usually  happened  did  happen  in  the  par- 
ticular instance;  and  such  presumptions,  like  all  others,  ought  to 
prevail,  unless  the  contrary  be  proved,  or  ot  least  be  encountered  by 
an  opposite  presumption. 

Where  a  fact  or  relation  is  in  its  nature  continuous,  after  its  exist- 
ence has  once  been  proved,  a  presumption  arises  as  to  its  continuance 
at  a  subsequent  time:  for,  from  the  nature  of  the  fact  or  relation,  a 
very  strong  presumption  arises  that  it  did  not   cease  immediately 

weicrh  the  well-known  and  well-settled  principles  of  law.  xVnd  I  rejoice  to  find 
that  of  late  years  the  courts  of  law,  both  in  England  and  in  America,  have  been 
disposed  to  narrow  the  limits  of  the  operation  of  such  usa<^es  and  customs,  and 
to  discountenance  any  further  extension  of  them.  The  true  and  appropriate 
office  of  a  usage  or  custom  is  to  interpret  the  otherwise  indeterminate  intentions 
of  parties,  and  to  ascertain  the  nature  and  extent  of  their  contracts,  arising  not 
from  express  stipulations,  but  from  new  implications  and  presumptions  and.acts 
of  a  doubtful  or  equivocal  character.  It  may  also  be  admitted  to  ascertain  the 
true  meaning  of  a  particular  word  or  of  particular  words  in  a  given  instrument 
when  the  word  or  vrords  have  various  senses,  some  common,  some  qualified,  and 
some  technical,  according  to  the  subject-matter  to  which  they  are  applied.  But 
I  apprehend  that  it  can  never  be  proper  to  resort  to  any  usage  or  custom  to  con- 
trol or  vary  the  positive  stipulations  in  a  written  contract  and  a  fortiori,  not  in 
order  to  contradict  them  :"  The  Schooner  v.  Eeeside,  2  Sumn.  569  5  Macomber  v. 
Parker,  13  Pick.  182  ;  Lawrence  v.  McGregor,  5  Ilam.  311  ;  Sampson  v.  Gazzam, 
6  Port.  123  ;  Cooper  v.  Kane,  19  Wend.  386  ;  Hone  v.  Mutual  Safety  Lis.  Co.,  1 
Sanf.  Sup.  Ct.  137.  A  person  who  makes  a  contract  is  not  bound  by  the  usage 
of  a  particular  business,  unless  it  is  so  general  as  to  furnish  a  presumption  of 
knowledge  or  it  is  proved  that  he  knew  it:  Stevens  v.  Beeves,  9  Pick.  198  ;  Wood 
V.  Ilickok,  2  Wend.  501  ;  The  Paragon,  Ware  322  ;  Winsor  v.  Dillaivay,  4  Mete. 
221  ;  Steamboat  Albatross  v.  Wayne,  16  Ohio  513;  Nichols  v.  De  Wolf,  1  11.  I. 
147.  W^itnesses  may  be  examined  to  prove  the  course  of  a  particular  trade,  but 
not  to  show  what  the  law  of  that  trade  is  :  Euan  v.  Garden,  1  Wash.  C.  C,  Rep. 
145;  Winthrop  v.  Union  Ins.  Co.,  2  Ibid.  7;  Austin  v.  Taylor,  2  Ham.  64.  A 
usage  of  an  individual,  which  is  known  to  the  person  who  deals  with  him,  may 
be  given  in  evidence  as  tending  to  prove  what  was  the  contract  betweeji  them  : 
Loring  v.  Gurney,  5  Pick.  15  ;  Naylor  v.  Semmes,  4  Gill.  &  Johns.  274 ;  Searson 
v.  Heyward,  1  Speers  249  ;  Berkshire  Woollen  Co.  v.  Porter,  7  Cash  417;  Adams 
V.  Otterback,  15  How.  S,  C.  K  539, 


76  INDIRECT    EVIDENCE. 

after  the  time  when  it  was  proved  to  exist,  and,  as  there  is  no  par- 
ticular time  when  the  presumption  ceases,  that  it  still  continues; 
therefore,  where  a  'partnersliip  between  two  persons  has  once  been 
established,  its  continuance  at  a  later  period  is  to  be  presumed, 
unless  the  termination  be  proved.''^  So,  where  the  existence  of  a 
particular  individual  has  once  been  shown,  it  will,  within  certain 
limits,  be  presumed  that  he  still  lives.  The  presumption  as  to  a 
man's  life  after  a  number  of  years  must  depend  upon  many  circum- 
stances; his  habits  of  life,  his  age,  and  constitution:  the  probable 
duration  of  the  life  of  a  person,  as  calculated  upon  an  average,  may 
of  course  be  easily  ascertained  in  every  particular  case :  but  for  the 
P^,----,  sake  of  ^practical  convenience,  the  law  lays  down  a  rule  in  some 
instances,  which  appears  to  have  been  very  generally  adopted, 
^  See  tit.  Partnership. 

^  Farr  v.  Payne,  40  Vt.  615  ;  Rhone  v.  Gale,  12  Minn.  54 ;  Innis  v.  Campbell, 
1  Rawle  373;  Smith  v.  Knowlton,  11  N.  H.  91.  So  that  possession  continues: 
Bayard's  Lessee  v.  Colfox,  4  Wash.  C.  C.  Rep.  38,  that  a  corporation  continues 
to  exist:  People  v.  Manhattan  Co.,  9  Wend.  351 ;  even  that  a  wrong  continues 
as  a  trespass  or  entry  and  ouster:  Lewis  v.  Paine,  4  Wend.  423  ;  Jackson,  ex 
dem.  Miller  v.  Porter,  4  Wend.  672,  A  state  of  peace  is  to  be  presumed  by 
courts  until  the  national  power  of  the  country  declares  to  the  contrary  :  The 
People  V.  McLeod,  1  Hill  377.  If  a  vessel  is  seaworthy  w^hen  the  policy  attaches, 
it  will  be  presumed  that  she  continues  so  during  the  time  of  the  risk,  unless  it 
otherwise  is  shown  in  proof:  Martin  v.  Fishing  Ins.  Co.,  20  Pick.  389.  So  the 
law  presumes  the  residence  of  a  person  to  continue  in  a  place  where  it  is  shown 
to  have  been  at  any  time,  until  the  contrary  is  shown:  Prather  y.  Palmer,  4 
Pike  456  ;  Cawdill  v.  Thurp>,  1  Iowa  158.  A  person  proved  to  have  been  insane 
at  any  time  is  presumed  to  remain  so,  until  the  contrary  is  proved  :  Spra<jue  v. 
Duel,  1  Clark  90 ;  Thornton  v.  Appleton,  29  Me.  298.  The  legal  presumption 
of  the  continuance  of  life  is  not  so  strong  as  the  legal  presumption  of  innocence  : 
Lockhart  v.  White,  18  Tex.  102  ;  Klein  v.  Latidmar,  29  Mo.  259  ;  Sharp  v.  John- 
son, 22  Ark.  79.  Proof  that  a  letter  addressed  to  one  of  the  parties  was  deposited 
in  the  post-office,  and  the  postage  paid,  carries  no  legal  presumption  that  it  Avas 
received,  so  as  to  make  secondary  evidence  of  its  contents  admissible  :  Freeman 
V.  Morey,  45  Me.  50.  A  note  once  proved  to  exist  is  presumed  to  exist  still, 
unless  payment  be  shown,  or  other  circumstances,  from  which  a  stronger 
counter-presumption  arises  :  Bell  v.  Young,  1  Grant  175.  A  legal  presumption 
is  a  conclusion  in  favor  of  the  existence  of  one  fact  from  others  in  proof:  Tanner 
V.  Hughes,  3  P.  F.  Smith  289.  If  bank  notes  arc  shown  to  have  circulated  as 
money,  they  will  be  presumed  to  be  genuine :  Hummel  v.  State,  17  Ohio  St.  628. 
The  presumption  is  that  a  guarantee  endorsed  was  executed  at  the  same  time 
with  the  contract:  Underwood  v.  Hossack,  38  111.  208.  In  the  absence  of  evi- 
dence to  the  contrary,  it  will  be  presumed  that  a  lost  receipt  was  properly 
stamped:  Thayer  v.  Barney,  12  Minn.  502.  Every  child  is  presumed  to  be 
legitimate:  Strode  v.  Magoivan,  2  Rush  621.  In  the  absence  of  proof,  the  pre- 
sumption is  tiiat  the  laws  of  anntlicr  state  are  the  same  as  those  of  this  state: 
Hill  V.  Grigshy,  32  Cul.  55. 


PRESUMPTIONS.  77 

that  after  a  person  has  gone  abroad,  and  has  not  been  heard  of  for 
seven  years,  it  is  to  be  presumed  that  he  is  dead.' '  The  various 
instances  in  which  facts  not  in  issue  may  properly  be  admitted  in 
evidence,  in  order  to  prove  some  other  fact  by  inference  from  them, 
are  far  too  numerous  to  be  detailed  on  this  occasion.  Some  of  them 
will  be  more  properly  adverted  to  in  considering  the  evidence  pecu- 
liar to  the  proof  of  particular  issues  ;™  suffice  it  to  observe  at  present, 

'  Doe  dem.  Knvjht  v.  Nei^ean,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  86  ;  2  M.  &  W.  894. 
See  tit.  Polygamy — Ejectment  by  Heir-at-Law — Death. 

"  Connections  frequently  consist  in  similarity  of  custom  or  tenure,  see  tit. 
Copyhold — Custom;  or  in  unity  of  design  or  purpose,  see  Conspiracy.     Thus 

'  Wambaugh  v.  Schank,  1  Penn.  229;  JSfewrnan  v.  Jenkins,  10  Pick.  515  ;  Woods 
V.  Wood's  Adnir.  2  Bay  476  ;  Sptirr  v.  Fimhle,  1  Marsh.  278  ;  H%ill  v.  Common- 
7vealth,  Hardin  479 ;  Innis  v.  Campbell,  1  Rawle  373  ;  Burr  v.  Sims,  4  Whart. 
150 ;  Bradleij  v.  Bradley,  Ibid.  173  ;  Loring  v.  Steimnan,  1  Mete.  204  ;  Fursaith 
V.  Clark,  1  Post.  409 ;  Primm  v.  Stewart,  7  Tex.  178  ;  Tisdale  v.  Conn.  Ins.  Co., 
26  Iowa  170;  Flynn  v.  Coffee,  12  Allen  133;    Clarke's  Executors  v.  Canjield,  2 
McCart.  119.     AV^hen  a  person  has  not  been  heard  from  in  seven  years,  and 
when  last  heard  from,  he  was  beyond  sea,  without  having  any  known  residence 
abroad,  the  legal  presumption  is,  that  he  is  dead ;  but  there  is  no  presumption 
that  he  died  at  any  particular  time,  or  even  on  the  last  day  of  the  seven  years : 
Mc  Carter  v.  Camel,  1  Barb.  Ch.  Rep.  455.     The  death  is  generally  presumed  to 
have  occurred  at  the  expiration  of  the  time:   Smith  v.  KnoivUon,  UN.  H.  191  ; 
Burr  V.  Sims,  4  Whart.  150  ;  Bradley  v.  Bradley,  Ibid.  173  ;  but  not  in  all  cases : 
State  V.  Moore,  11  Ired.  160.    Although  mere  absence  of  a  person  from  his  place 
of  residence  does  not  raise  a  presumption  of  his  death,  until  after  the  lapse  of 
seven  years  without  his  being  heard  from,  yet  his  absence  for  a  much  less  space 
of  time  without  his  being  heard  from,  in  connection  with  other  circumstances, 
will  raise  such  presumption  :  White  v.  Mann,  26  Me.  361  ;  Merritt  v.  Thompson, 
1  Hilt.  550.     Where  a  demandant  claimed  under  one  of  six  children  of  the 
former  owner  of  the  land,  evidence  that  inquiries  had  been  made  in  regard  to 
the  other  five  children  and  that  nothing  had  been  heard  of  them  for  seven  years, 
was  held  sufficient  to  justify  a  jury  in  finding  that  they  had  died  without  issue: 
King  v.  Fowler,  11  Pick.  302  ;  so  after  forty-eight  years  :  Allen  v.  Lyons,  2  AVash. 
C.  C.  Rep.  475;  so  after  twenty-two  years:  McComb  v.  Wright,  5  Johns.  Ch. 
Rep.  263.    It  is  not  to  be  inferred  however  negatively  from  these  cases,  that  the 
ordinary  period  for  raising  the  presumption  of  death  is  not  also  sufficient  to 
raise  the  presumption  of  death  without  issue ;  if  the  party  was  without  issue 
when  last  heard  from,  or  if  the  issue  has  also  been  unheard  from  for  seven 
years.     In  a  question  of  survivorship  in  a  common  calamity,  the  legal  presump- 
tions arising  from  age,  sex,  and  physical  strength,  do  not  obtain  in  our  juris- 
prudence ;  but  these  circumstances  are  matters  of  evidence  which  may  be  con- 
sidered:   Smith  V.  Croom,  7  Fla.  81.     Where  a  vessel  sailed  about  the  time  of 
a  violent  storm  on  her  track,  and  no  tidings  were  heard  of  her  for  three  years, 
it  was  held  that  the  death  of  those  on  board  might  be  presumed :    Gibbes  v. 
Vincent,  11  Rich.  (Law)  323. 
6 


78  INDIRECT    EVIDENCE. 

that  the  admissibility  of  such  evidence  always  depends  on  some 
natural  or  artificial  connection  between  that  which  is  offered  to  be 
proved  and  that  which  is  proposed  to  be  inferred. 

In  general,  all  the  affairs  and  transactions  of  mankind  are  as  much 
connected  together  in  one  uniform  and  consistent  whole,  without 
chasm  or  interruption,  and  with  as  much  mutual  dependence  on  each 
other,  as  the  phenomena  of  nature  are;  they  are  governed  by  general 
laws;  all  the  links  stand  in  the  mutual  relations  of  cause  and  effect; 
there  is  no  incident  or  result  which  exists  independently  of  a  number 
of  other  circumstances  concurring  and  tending  to  its  existence,  and 
these  in  their  turn  are  equally  dependent  upon  and  connected  with  a 
multitude  of  others.  For  the  truth  of  this  position,  the  common 
experience  of  every  man  may  be  appealed  to ;  he  may  be  asked, 
whether  he  knows  of  any  circumstance  or  event  which  has  not  fol- 
lowed as  the  natural  consequence  of  a  number  of  others  *tend- 
•-  -I  ing  to  produce  it,  and  which  has  not  in  its  turn  tended  to  the 
existence  of  a  train  of  dependent  circumstances.  Events  the  most 
unexpected  and  unforeseen  are  so  considered  merely  from  ignorance 
of  the  causes  which  were  secretly  at  work  to  produce  them  ;  could 
the  mechanical  and  moral  causes  which  gave  rise  to  them  have  been 
seen  and  understood,  the  consequences  themselves  would  not  have 
created  surprise. 

It  is  from  attentive  observation  and  experience  of  the  mutual  con- 
nection between  different  facts  and  circumstances,  that  the  force  of 
such  presumptions  is  derived  :  for  where  it  is  known  from  experience 
that  a  number  of  facts  aad  circumstances  are  necessarily,  or  are  uni- 
formly or  usually  connected  with  the  fact  in  question,  and  such  facts 
and  circumstances  are  known  to  exist,  a  presumption  that  the  fact  is 
true  arises,  which  is  stronger  or  weaker  as  experience  and  observa- 
tion show  that  its  connection  with  the  ascertained  facts  is  constant, 
or  is  more  or  less  frequent. 

The  presumptions  or  inferences  above  alluded  to  are  chiefly  those 
which  are  deducible  by  virtue  of  mere  antecedent  experience  of  the 
ordinary  connection  between  the  known  and  the  presumed  facts;" 
but  circumstantial  or  presumptive  evidence  in  general  embraces  a  far 
wider  scope,  and  includes  all  evidence  which  is  of  an  indirect  nature, 

in  order  to  show  tlie  necessity  of  callinf^  in  the  iiid  of  the  military  to  execute 
proccHR,  proof  of  acts  of  violence  by  the  mob  collected  in  another  quarter,  but 
collected  for  the  .same  purpose  as  those  about  the  plaintiff's  house,  is  admis- 
sible :  Burddt  v.  Colman,  H  P^ast  183. 

■  See  tit.  CiRtUMSTANTIAl,  KviUENCE. 


PRESUMPTIONS.  78 

■whether  the  presumption  or  inference  be  drawn  by  virtue  of  previous 
experience  of  the  connection  between  the  known  and  the  inferred 
facts,"  or  be  a  conclusion  of  reason  from  the  circumstances  of  the  par- 
ticular case,  or  be  the  result  of  reason  aided  by  experience. 

From  what  has  been  said,  it  seems  to  follow  that  all  the  surround- 
ing facts  of  a  transaction,  or  as  they  are  usually  termed,  the  7'es  gestce, 
may  be  submitted  to  a  jury,  provided  they  can  be  established  by  com- 
petent means,  sanctioned  by  the  law,  and  afford  any  fair  presumption 
or  inference  *as  to  the  question  in  dispute;  for,  as  has  already 
been  observed,  so  frequent  is  the  failure  of  evidence,  from  '-  -^ 
accident  or  design,  and  so  great  is  the  temptation  to  the  concealment 
of  truth  and  misrepresentation  of  facts,  that  no  competent  means  of 
ascertaining  the  truth  can  or  ought  to  be  neglected  by  Avhich  an  indi- 
vidual would  be  governed,  and  on  which  he  would  act,  with  a  view  to 
his  own  concerns  in  ordinary  life.  Let  it  be  considered,  then,  frst, 
what  is  the  kind  of  evidence  to  which  he  would  naturally  resort ;  and 
in  the  next  place,  how  far  the  law  interferes  to  limit  and  restrain  the 
reception  of  such  evidence ;  remembering,  at  the  same  time,  that  all 
artificial  and  purely  conventional  anodes  of  evidence  form  a  subject  for 
future  consideration. 

Where  an  ordinary  inquirer  could  not  obtain  information  from  any 
witness  of  the  fact  which  he  was  anxious  to  ascertain,  either  imme- 
diately from  such  witness,  or  mediately  through  others,  or  where  the 
information  which  he  had  obtained  Avas  not  satisfactory,  his  attention 
would  be  directed  to  the  circumstances  which  had  a  connection  with 
the  transaction,  as  ascertained  either  by  his  own  observation,  or  by 
means  of  the  information  of  others,  to  enable  him  to  draw  his  own 
conclusions  ;  and  in  pursuing  such  an  inquiry,  where  it  was  a  matter 
of  importance  and  interest,  he  would  neglect  no  circumstances  which 
were  in  any  way  connected  with  the  transaction,  which  could,  either 
singly  or  collectively,  enable  him  to  draw  any  reasonable  inference  on 
the  subject.  All  his  experience  of  human  conduct,  of  the  motives  by 
which  such  conduct  was  likely  to  be  influenced  under  particular  cir- 
cumstances, of  the  ordinary  usages,  habits  and  course  of  dealing  among 
particular  classes  of  society,  or  in  particular  transactions,  even  his 
scientific  skill  in  medicine,  surgery  or  chemistry,  abstract  probabilities 
or  natural  philosophy,  might  be  called  into  action,  to  enable  him,  by 
a  general  and  comprehensive  view  of  all  the  circumstances,  and  their 

*•  See  tit.  Circumstantial  Evidence  ;  Vol.  II.,  tit.  Presumptions,  3  Bhi.  Comm. 
371  ;  Gilb.  L.  Ev.  160. 


79  INDIRECT    EVIDENCE. 

mutual  relations  to  each  other,  to  draw  such  a  conclusion  as  reason, 
aided  by  experience,  would  warrant. 

*There  is,  in  truth,  no  connection  or  relation,  whether  it  be 

r*801  •  • 

•-       -I    natural  or  artificial,  which  may  not  afford  the  means  of  infer- 
ring a  fact  previously  unknown,  from  one  or  others  which  are  known. 

Where  the  connection  between  facts  is  so  constant  and  uniform  that 
from  the  existence  of  the  one  that  of  the  other  may  be  immediately 
inferred,  either  with  certainty,  or  with  a  greater  or  less  degree  of 
probability,  the  inference  is  properly  termed  a  presumption,P  in  con- 
tradistinction to  a  conclusion  derived  from  circumstances  by  the  united 
aid  of  experience  and  reason. 

Circumstantial  proof  is  supplied  by  evidence  of  circumstances,  the 
effect  of  which  is  to  exclude  any  other  supposition  than  that  the  fact 
to  be  proved  is  true. 

The  nature  and  force  of  such  proof  will  be  more  properly  consid- 
ered at  another  opportunity.  The  mere  question  at  present  is  how 
far  the  law  interferes  to  limit  and  restrain  the  admission  of  evidence 
of  collateral  circumstances  tending  to  the  proof  of  a  disputed  fact. 

In  the  first  place,  as  the  very  foundation  of  indirect  proof  is  the 
establishment  of  one  or  more  other  facts  from  which  the  inference 
is  sought  to  be  made,  the  law  requires  that  the  latter  should  be  estab- 
lished by  direct  evidence,  in  the  same  manner  as  if  they  were  the  very 
facts  in  issue. 

The  next  question  then  is,  what  limit  is  there  to  the  admission  of 
collateral  evidence  for  the  purpose  of  indirect  proof. 

*The  nature  of  the  evidence,  and  the  principles  by  which 
*-  -'  it  is  to  be  appreciated,  are,  as  has  already  been  observed,  to  a 
great  extent  common  to  judicial  and  extrajudicial  inquiries.  Its  force 
and  efficacy,  in  the  one  case  as  well  as  in  the  other,  must  necessarily 
depend  either  on  the  known  and  ordinary  connection  between  the 
facts  proved  and  the  facts  disputed,  or  on  the  force  and  tendency  of 
the  facts  proved  to  establish  the  truth  of  the  disputed  fact  or  issue  by 
excluding  any  other  supposition. 

■*  Such  inferences  are  wholly  independent  of  any  actual  knowled_2;e  of  the  ne- 
cessity of  the  connection  between  the  known  and  unknown  facts.  Many  of  the 
presumptions  which  we  have  to  deal  with,  as  connected  with  the  present  subject, 
arc  Ic^al  presumptions,  where  the  law  itself  establishes  a  connection  or  relation 
between  iiarticular  facts  or  predicaments;  as  that  the  heir  to  a  real  estate  was 
seised,  or  tliat  a  Ijill  of  exchange  was  founded  on  a  f^ood  consideration.  These, 
howeviir,  will  be  a  sulyect  for  consideration  when  inquiry  is  made  with  respect 
to  the  artificial  effect  annexed  by  the  law  to  particular  evidence ;  for  such  pre- 
sumptions are  of  an  artificial  and  technical  nature,  whilst  those  at  present  con- 
sidered arc  merely  natural. 


CIRCUMSTANTIAL     EVIDENCE.  81 

Great  latitude  is  justly  alloAved  by  the  law  to  the  reception  of  in- 
direct or  circumstantial  evidence,  the  aid  of  which  is  constantly  re- 
quired, not  merely  for  the  purpose  of  remedying  the  want  of  direct 
evidence,  but  of  supplying  an  invaluable  protection  against  imposi- 
tion. The  law  interferes  to  exclude  all  evidence  which  fiills  within 
the  description  of  "res  inter  alios  acta;"  the  effect  of  which  is,  as 
will  presentl^^  be  seen,  to  prevent  a  litigant  party  from  being  con- 
cluded, or  even  affected,  by  the  evidence,  acts,  conduct  or  declara- 
tions of  strangers.  And  this  rule  is  to  be  regarded,  to  a  great 
extent  at  least,  not  so  much  as  a  limitation  and  restraint  of  the 
natural  effect  of  such  collateral  evidence,  but  as  a  restraint  limited 
by,  and  co-extensive  with,  the  very  principle  by  which  the  reception 
of  such  evidence  is  warranted;  for  the  ground  of  receiving  such 
evidence  is  the  connection  between  the  facts  proved  and  the  facts  dis- 
puted ;  and  there  is  no  such  general  connection  between  the  acts,  con- 
duct and  declarations  of  strangers,  as  can  afford  a  fair  and  reasonable 
inference  to  be  acted  on  generally  even  in  the  ordinary  concerns  of 
life,  still  less  can  they  supply  such  as  ought  to  be  relied  on  for  the 
purpose  of  judicial  investigation.  And  therefore  this  extensive  branch 
of  the  rule  which  rejects  the  res  inter  alios  acta,  may  be  considered 
as  founded  on  principles  of  natural  reason  and  justice,  the  same  wntli 
those  which  warrant  the  reception  of  indirect  evidence. 

In  the  first  place,  the  mere  declarations  of  strangers  are  inadmis- 
sible, except  in  the  instances  already  considered,  *where  on  r^t^oQ-i 
particular  grounds,  and  under  special  and  peculiar  sanctions, 
they  are  admissible  as  direct  evidence  of  a  fact.  Declarations  so  cir- 
cumstanced may  be  used  either  for  the  purpose  of  directly  establish- 
ing the  principal  fact  in  dispute,  or  for  the  purpose  of  proving  the 
existence  of  collateral  facts  from  which  the  principal  fact  may  be 
inferred ;  but  other  declarations,  which  are  of  too  vague  and  suspi- 
cious an  origin  to  be  received  as  evidence  of  the  facts  declared,  must 
also  on  the  same  principle,  be  rejected  as  indirect  evidence.  If  such 
declarations  as  to  the  principal  fact  be  inadmissible,  they  must  also 
be  at  least  equally  inadmissible  to  establish  any  collateral  fact,  by 
the  aid  of  which  the  principal  f;ict  may  be  indirectly  inferred.  It 
would  be  inconsistent  to  reject  them  when  offered  as  direct  testimony, 
but  to  receive  them  as  collateral  evidence,  the  more  especially  as 
even  immediate  testimony  is  in  one  sense  but  presumptive  evidence 
of  the  truth ;  for  it  is  on  the  presumption  of  human  veracity  con- 
firmed by  the  usual  legal  tests,  that  credit  is  usually  given  to  human 
testimony. 


82  INDIRECT    EVIDENCE. 

If,  for  example,  the  question  were  whether  A  had  waylaid  and 
wounded  B,  if  the  declaration  of  a  third  person,  not  examined  on  the 
trial,  that  he  saw  the  very  fact,  could  not  be  received  in  evidence, 
neither,  on  any  consistent  principle,  could  his  declaration  that  he  saw 
A  near  the  place,  armed  with  a  weapon,  be  received  in  ortler  to 
establish  that  fact  as  one  of  several  constituting  a  body  of  circumstan- 
tial evidence.  For  circumstantial  proof  rests  wholly  on  the  eifect  of 
established  facts,  and  cannot,  therefore,  be  properly  founded  wholly 
or  in  part  on  mere  declarations,  which  are  of  no  intrinsic  weight  to 
prove  any  facts.'' 

Neither,  in  general,  ought  any  inference  or  presumption  to  the 
prejudice  of  a  party  to  be  drawn  from  the  mere  *acts  or  con- 
•-  -^  duct  of  a  strancrer;  for  such  acts  and  conduct  are  but  in  the 
nature  of  declarations  or  admissions,  frequently  not  so  strong  ;  and 
such  declarations  are  inadmissible,  for  the  reasons  already  stated. 
An  admission  by  a  stranger  cannot  be  received  as  evidence  against 
any  party ;  for  it  may  have  been  made,  not  because  the  fact  admitted 
was  true,  but  from  motives  and  under  circumstances  entirely  col- 
lateral, or  even  collusively,  and  for  the  very  purpose  of  being  offered 
in  evidence.  On  a  principle  of  good  faith  and  mutual  convenience, 
a  man's  own  acts  are  binding  upon  himself,''  and  his  acts,  conduct 
and  declarations  are  evidence  against  him  ;  but  it  would  not  only  be 
highly  inconvenient,  but  also  manifestly  unjust,  that  a  man  should 
be  bound  by  the  acts  of  mere  unauthorized  strangers.  But  if  a 
party  ought  not  to  be  bound  by  the  acts  of  strangers,  neither  ought 
their  acts  or  conduct  to  be  used  as  evidence  against  him  for  the  pur- 
pose of  concluding  him  ;  for  this  would  be  equally  objectionable  in 
principle,  and  more  dangerous  in  effect,  than  the  other.  It  is  true, 
that  in  the  course  of  the  affairs  of  life  a  man  may  frequently  place 
reliance  on  inferences  from  the  conduct  of  others.  If,  for  instance, 
A  and  B  were  each  of  them  insurers  against  the  same  risk,  A  to  a, 
large,  and  B  to  a,  small  amount,  it  is  very  possible  that,  on  a  claim 
made  against  each  for  loss,  which  was  admitted  and  paid  by  A  to  the 
extent  of  his  liability,  B,  trusting  to  the  knowledge  and  prudence  of 
A,  might  reasonably  infer  that  the  loss  insured  against  had  occurred, 
and  that  he  also  was  bound  to  pay  his  proportion.  It  is  plain,  how- 
ever, that  such  an   inference  Avould  rest  on  the  special  and  peculiar 

■'  TIiIh  oliscrviitioii  of  course!  does  not  extcml  to  any  case  where  the  mere  fiict 
of  Bucli  ii  (loelarutioii  having  Ijiieii  made  is  in  itself  material  :  any  sucli  deehira- 
tion  is  of  itself  a  faet. 

'  See  Vol.  J  I.,  tit.  Admissions. 


ACTS    OF     STRANGERS.  83 

circumstances  of  the  case  ;  and  that,  so  far  from  warranting  the 
general  acimission  of  such  evidence  by  inference  on  a  legal  trial  to 
ascertain  the  fact,  it  would  supply  no  general  rule,  but  must  be  re- 
garded as  an  exception,  even  in  the  ordinary  course  of  business.^ 

*In  addition  to  this,  it  is  obvious  that  whilst  an  individual  r^o^-i 
might  with  discretion  rely  on  the  conduct  of  others,  where, 
under  the  peculiar  circumstances,  there  was  no  reason  for  suspicion 
(in  which  case  a  principle  of  self-interest  would  usually  secure  the 
exercise  of  a  sound  discretion),  such  inferences  could  not  be  safely 
left  to  a  jury,  wlio  could  not  possibly  be  put  in  possession  of  all  the 
collateral  reasons  by  which  an  individual  might  properly  be  influ- 
enced in  trusting  to  such  evidence,  and,  which  is  more  material, 
could  not  act  on  those  collateral  circumstances  of  suspicion  which 
would  have  induced  an  individual  to  withhold  his  confidence. 

An  act  done  by  another,  from  which  any  inference  is  to  be  drawn 
as  to  bis  knoAvledge  of  any  bygone  fact,  is  an  acted  declaration  of 
the  fact,  and  is  not  in  general  evidence  of  the  fact,  because  there  is 
no  sufficient  test  for  presuming  either  that  he  knew  the  fact,  or  that, 
knowing  the  fact,  his  conduct  was  so  governed  by  that  knowledge  as 
to  afford  evidence  of  the  fact  which  ought  to  be  relied  on.  A  man 
may  frequently  act  upon  very  uncertain  evidence  of  a  fact ;  he  may 
have  been  deceived  by  others:  and  even  where  he  has  certain  know 
ledge,  his  conduct  may  frequently  be  governed  by  motives  independ- 
ent of  the  truth,  or  even  in  opposition  to  it. 

Where  a  party  professes  to  act  on  his  knowledge  of  the  truth  of 
a  particular  fact,  so  that  his  so  acting  is  accompanied  by,  or  is  equiva- 
lent to  a  direct  or  express  declaration  of  the  truth  of  that  fact,  the 


1  Declarations  of  co-conspirators  are  admissible  against  each  other :  State  v 
Thibeau,  30  Vt.  100 ;  Comm'th  v.  Ingraham,  7  Gray  46  ;  Mask  v.  State,  32  Miss 
405;  Peck  V.  Yorks,  47  Barb.  131  ;  People  v.  Pitcher,  15  Mich.  397;  Mason  v 
State,  43  Ala.  532 ;  Dart  v.  Walker,  3  Daly  138  ;  Street  v.  State,  43  Miss.  1 
Jacobs  V.  Shore)/,  48  N.  II.  100;  Ellis  v.  Dempsey,  4  W.  Va.  126;  Lincoln  v 
Claxlin,  7  Wall.  132;  Jenne  v.  Joslpi,  41  Vt.  478  ;  State  v.  Grady,  34  Conn.  118 
Helser  v.  McGrath,  8  P.  F.  Smith  458  ;  Bushnell  v.  City  Bank,  20  La.  Ann.  464  ; 
State  V.  Daubut,  42  Mo.  239.  In  an  action  on  the  case  for  conspiracy,  proof  of 
a  division  of  the  profits  of  the  fraudulent  action  is  sufficient  evidence  of  combi- 
nation in  the  first  instance  to  render  admissible  the  declarations  of  one  con- 
spirator against  the  rest:  Kimmell  v.  Geeting,  2  Grant  125  ;  M'Dowell  v.  Kissel, 
1  Wright  164;  Scott  v.  Baker,  Ibid.  350.  Even  where  a  conspiracy  has  been 
proved,  the  admission  of  one  prisoner,  made,  not  in  the  prosecution  of  the  un- 
dertaking, but  after  its  completion,  are  not  admissible  against  another :  Lynes  v. 
State,  36  Miss.  617  ;  State  v.  Ross,  29  Mo.  32  ;  Clinton  v.  Estes,  20  Ark.  216  ; 
Thompson  v.  Comm'th,  1  Mete.  (Ken.)  13;  Benford  v.  Sanner,  4  Wright  9. 


84  INDIRECT    EVIDENCE. 

question  of  admissibility  falls  under  principles  already  considered. 
A  test  is  necessary  to  show,  first,  that  he  had  competent  knowledge 
of  the  fact ;  secondly,  that  he  faithfully  communicated  Avhat  he  knew. 

The  rule,  therefore,  in  the  absence  of  special  tests  of  truth,  ope- 
rates to  the  exclusion  of  all  the  acts  or  declarations  or  conduct  of 
others,  as  evidence  to  bind  a  party,  either  directly  or  by  inference ; 
and,  in  general,  no  declaration,  or  written  entry,  or  even  affidavit 
made  by  a  *stran2er  is  evidence  against  any  man.'  ^  Neither 
L  -J  can  any  one  be  affected,  still  less  concluded,  by  any  evidence, 
decree,  or  judgment,  to  which  he  was  not  actually  or  in  consideration 
of  law  privy. 

As  this  is  a  rule  which  rests  on  the  clearest  principles  of  reason 
and  natural  justice,  it  has  ever  been  regarded  as  sacred  and  in- 
violable. 

The  importance  of  the  principle,  and  the  extent  of  its  operation, 
make  it  desirable  to  ascertain  its  limits,  by  inquiring  negatively  what 
it  does  not  exclude. 

In  the  first  place,  then,  it  is  scarcely  necessary  to  observe,  that  a 
man's  own  acts,  conduct  and  declarations,  where  voluntary,  are  always 
admissible  in  evidence  against  him.  As  against  himself,  it  is  fair 
to  presume  that  his  words  and  actions  correspond  with  the  truth  : 
it  is  his  own  fault  if  they  do  not.  In  many  instances  he  is  con- 
clusively bound,  more  especially  where  he  has  formally  engaged  to 
be  so  bound ;  in  others,  his  declarations  or  acts  furnish  mere  inimd 
facie  presumptions  against  him.  The  rule,  therefore,  above  adverted 
to,  never  excludes  evidence  of  any  acts  or  declarations  made  either 
by  the  party  himself,  or  which  he  has  authorized,  or  to  which  he  has 
assented.* 

It  is  plain  also  that  this  principle  does  not  exclude  the  operation 
of  any  general  rule  of  law  or  custom  ;  of  these,  and  all  their  conse- 
quences, he  is  bound  to  take  notice  at  his  peril. 

It  follows,  therefore,  that  even  the  acts  and  declarations  of  others 

•  For  illustrations  of  this  general  principle,  vide  infra,  tit.  DErosixiONS — 
Judgments — Examinations. 

'  Vol  II.,  tit.  Admissions.     Spargo  v.  Brown,  9  B.  &  C.  (17  E.  C.  L.  R.)  935. 

■  Where  the  defendant,  bcin;:;  sued  for  debt,  set  up  in  defence,  that  by  a  new 
contract  witii  liiin,  the  plaintifl'  accepted  a  third  person  as  his  debtor  in  place  of 
the  defen<lant,  an  indorsement  of  the  amount  of  the  debt,  made  without  the 
privity  of  the  plaintiff,  on  a  note  held  by  the  defendant  af^ainst  such  third  per- 
son, Ih  not  admiHsiblc  to  prove  such  new  contract,  being  res  inter  alios  acta: 
Jacobs  V.  rutnum,  4  Pick.  108.  M. 


ACTS    OF     STRANGERS.  85 

are  not  excluded  by  this  principle,  whenever  they  have  any  legal 
operation  which  is  material  to  the  subject  of  inquiry ;  for  legal  con- 
sequences can  no  more  be  regarded  as  res  inter  alios  than  the  law 
itself.  For  instance,  where  the  contest  is  as  to  the  right  to  a  per- 
sonal chattel,  evidence  is  admissible,  even  against  an  owner  who 
proves  that  he  never  sold  the  chattel,  of  a  subsequent  sale  of  the 
property  *in  market  overt;  for  although  he  was  no  party  to 
the  transaction,  which  took  place  entirely  between  others,  yet  ^  J 
as  such  a  sale  has  a  legal  operation  on  the  question  at  issue,  the  fact 
is  no  more  res  inter  alios  acta  than  the  law  which  gives  effect  to  such 
a  sale.  So  in  actions  against  a  sheriff,  it  very  frequently  happens 
that  the  law  depends  wholly  on  transactions  to  which  the  sheriff  is 
personally  an  entire  stranger ;  where  the  question  is  as  to  the  right 
of  ownership  to  particular  property,  seized  under  an  execution,  all 
such  transactions  and  acts  between  others  are  admissible  in  evidence 
which  in  point  of  law  are  material  to  decide  the  right  of  property. 
So  in  all  cases  where  any  statute  or  law,  or  decree  or  judgment,  is 
of  a  public  nature,  or  operates  in  rem;  for  to  such  proceedings  all 
are  privy. 

Nor  does  the  objection  ever  apply  where  the  conduct  or  declara- 
tion of  another  operates  not  by  way  of  admission  or  mere  statement, 
but  as  evidence.  Thus,  if  A  makes  a  private  memorandum  of  a  fact 
in  which  B  has  an  interest,  that  memorandum,  generally  speaking, 
would  not  be  evidence  against  B  ;  it  would  fall  within  the  description 
of  res  inter  alios  acta  ;  but  if  it  were  a  memorandum  of  a  fact  pecu- 
liarly within  the  knowledge  of  A,  and  made  in  the  usual  course  of 
business,  or  if  ^,  by  that  entry  charged  himself,  it  would  be  admis- 
sible in  evidence  after  the  death  of  A  ;  not  that  it  operates  against 
B  by  Avay  of  admission  of  the  ftxct,  for  if  so  it  would  be  admissible 
whether  A  were  living  or  dead,  but  because,  under  those  circum- 
stances, the  law  considers  the  entry  to  be  a  proper  medium  for 
communicating  the  original  fact  to  the  jury,  the  testimony  of  A 
himself  being  unattainable. 

So  the  declarations  of  deceased  persons,  and  evidence  of  reputa- 
tion, in  matters  of  public  prescription,  pedigree,  and  character,  are 
admissible,  not  because  strangers  have  any  power  to  conclude  a 
party  by  what  they  may  choose  wantonly  to  assert  upon  the  subject, 
but  because  the  law  considers  the  evidence  to  be  sufficiently  deserving 
of  credit,  as  a  means  of  communicating  the  real  fact,  to  be  offered  to 
*a  jury.  And  whenever  that  is  the  case,  it  is  obvious  that 
such  declarations  or  reputation  are  no  more  res  inter  alios    '-       ^ 


87  INDIRECT    EVIDENCE. 

than  if  the  declarants  themselves  had  stated  what  they  knew  upon 
oath  to  the  jury. 

In  the  next  place,  although  the  general  principle  above  announced 
excludes  the  declarations,  writing,  acts  and  conduct  of  strangers,  as 
falling  within  the  general  description  of  res  inter  alios  actce,  the  ob- 
jection does  not  extend  to  a  class  of  declarations  already  described  as 
declarations  accompanying  an  act ;  for  these,  when  the  nature  and 
quality  of  the  act  are  in  question,  are  either  to  be  regarded  as  part 
of  the  act  itself,  or  as  the  best  and  most  proximate  evidence  of  the 
nature  and  quality  of  the  act :  their  connection  with  the  act  either 
sanctions  them  as  direct  evidence,  or  constitutes  them  indirect  evidence, 
from  which  the  real  motive  of  the  actor  may  be  duly  estimated. 

Hence  it  is  that  declarations,  made  by  a  trader  at  the  time  of 
his  departure  from  his  residence  or  place  of  business,  are  evidence 
of  the  intention  with  which  he  went.  His  real  intention,  in  such  a 
case,  cannot  be  inferred  otherwise  than  from  external  appearances, 
from  his  acts ;  and  his  declarations  are  collateral  indications  of  the 
nature  of  his  acts  and  his  intention  in  doing  them."  Upon  the  same 
principle,  in  Lord  George  Grordon's  ease,  the  cries  of  the  mob,  at  the 
time  they  were  committing  acts  of  violence,  were  held  to  be  admis- 
sible evidence  to  show  their  intention.''  Such  evidence  is  also 
admissible  in  actions  against  the  hundred,  in  case  of  an  action 
to  recover  the  value  of  property  feloniously  demolished  by  persons 
riotously  assembled.  Again,  in  order  to  prove  that  a  husband  had 
obliged  his  wife  to  leave  his  house  by  ill-treatment,  the  declaration 
of  the  wife  at  the  time  of  leaving  the  house  was  held  to  be  admissible 
evidence  against  the  husband  to  prove  the  fact.  Here  the  fact  itself 
of  leaving  the  house  was  material  and  admissible,  and  the  declaration 
accompanying  the  fact  was  collateral  evidence  *of  the  nature 
L  J  of  tbe  act.  The  same  principle  applies,  as  will  be  seen,  in 
actions  for  criminal  conversation.  There  the  terms  on  which  the  plain- 
tiff and  his  wife  lived  previous  to  the  adultery,  being  material  to  the 
inquiry,  declarations  by  the  wife  in  the  absence  of  the  husband,  and 
letters  written  by  her,  not  only  to  him  but  even  to  third  persons,  are 
admissible  evidence  to  show  the  state  of  her  mind  and  her  affection 
for  him.'      So,  declarations  by  a  patient^  to  a  medical  attendant,  as 

"See  tit.  Uankiu-i't.  =^2]  Howell's  St.  Tr.  542. 

'Per  Loni   Kilcnliurou^i;!!,  0  Ea.st  188  ;  .and  see  Vol.  II.,  Criminal  Conversa- 

TIO.N. 

*G  East  188.  It  has  boon  truly  observed,  that  representations  made  by  a 
party,  as  to  his  health   and   sensations,  when  made  to  a  medical  attendant,  who 


DECLARATIONS     OF    STRANGERS.  88 

to  liis  state  of  body  and  sufferings  at   the  time,  are   evidence  of  the 

fact,  for  in  many  cases  they  furnish  the  only  means  of  ascertaining 

that  state,  and  tliey  are,   in    reality,   part  of  his   examination ;   but 

declarations  so  made  as  to  the  independent  fact  of  the  cause  or  the 

orio-in  of  that  state  are  not  admissible.* 

It  is,   however,  to  be  particularly  observed,    that  in   these    ^  ^^^ 

.  .  ...  r  891 

*cases,  when  declarations  or  entries'"  are  admitted  in  evidence    '-     '^-' 

as  part  of  the  res  gestce  or  transaction,  they  are  admitted,  either  be- 
cause they  constitute  the  very  fact  which  is  the  subject  of  inquiry,* 
or  because  they  elucidate  the  facts  with  which  they  are  connected, 
having  been  made  without  premeditation  or  artifice,  and  without  a 
view  to  the  consequences  ;  and  as  such  they  are  the  best  evidence — 
it  may  be,  better  than  even  the  subsequent  testimony  of  the  party 
Avho  made  them — to  prove  the  object  for  Avhich  they  are  admitted  in 
evidence  ;  for  the  party  who  made  the  declaration,  if  he  were  com- 
petent as  a  witness,  would  frequently  be  under  a  temptation  to  give 
a  false  coloring  to  the  circumstance  when  its  tendency  was  known; 

has  the  opportunity  of  observinij;  whether  they  correspond  with  the  symptoms 
to  which  they  refer,  are  entitled  to  i;;reater  weight  than  such  as  are  made  to  an 
inexperienced  person.  Phillips  on  Evidence,  9th  ed.,  vol.  i.,  p.  190,  citing  the  ob- 
servations made  by  the  Attorney-General  (Copley),  in  the  Gardiner  Peerage  Case. 
In  Aveson  v.  Lord  Kinnaird,  the  rule  is  laid  down  as  to  patients  without  qualifi- 
cation. The  admissibility  of  such  evidence  is  in  principle  confined  to  representa- 
tions made  as  to  the  state  of  the  party  at  the  time  of  making  the  representation, 
as  contradistinguished  from  any  statement  of  a  particular  fact  occurring  at  any 
antecedent  time.  In  the  Gardiner  Peerage  Case,  p.  79-136,  170,  where  it  became 
material  to  inquire  into  the  ordinary  period  of  gestation,  the  medical  witnesses 
were  not  permitted  to  state  what  had  been  said  by  women  whom  they  had 
attended  in  their  confinement,  as  to  the  date  of  their  conception. 

^  Aveson  Y.  Lord  Kinnaird,  6  East  188;  Reg.  \.  Johnson,  2  Car.  &  K.  (61 
E.  C.  L.  R.)  354;  2Mr  Parke,  B.,  Reg.  v.  Guttridge,  9  Car.  &  P.  (38  E.  C.  L.  R.) 
472.  In  the  case  of  Rex  v.  Foster,  6  Car.  &  P.  (25  E.  C.  L.  R.)  325,  it  was  held 
by  Gurney,  B.,  and  Park,  J.,  that  a  declaration  by  one  since  deceased,  instantly 
on  receiving  a  fatal  injury,  as  to  the  cause  of  the  injury,  was  admissible.  And 
see  further  on  this  suVjject,  Rex  v.  Megson,  9  C.  &  P.  (38  E.  C.  L.  R.)  420 ;  Rex 
V.  Osborne,  Car.  &  M.  (41  E.  C.  L.  R.)  622 ;  Vol.  III.,  Rape  ;  Entries  by  Third 
Persons,  post. 

^  In  future,  to  avoid  repetition,  the  term  declaration  alone  will  be  used ;  but 
it  must  be  remembered  that  the  same  principle  applies  to  a  written  entry. 

"  See  Kent  v.  Loioen,  1  Camp.  C.  177.  It  is  indeed  only  when  the  fact  by 
which  the  declaration  is  accompanied  is  material  and  relevant  that  the  declara- 
tion is  admissible :  see  R.  v.  Bliss,  7  A.  &  E.  (34  E.  C.  L.  R.)  550 ;  Doe  d.  Tat- 
liam  V.  Wright,  7  A.  &  E.  (34  E.  C.  L.  R.)  313  ;  6  Nev.  &  M.  (36  E.  C.  L.  R.) 
132;  4  Bing.  N.  C.  (33  E.  C.  L.  R.)  489;  and  2  Nev.  &  P.  305.  For  further 
illustrations  of  these  principles,  see  tit.  Entries  by  Third  Persons. 


89  INDIRECT    EVIDENCE. 

besides,  as  in  this  case  the  effect  of  the  evidence  is  independent  of 
the  credit  due  to  the  party  himself,  it  could  be  of  no  use  to  confirm 
his  credit  by  examination  upon  oath,  and  his  declaration  as  a  mere 
fact  is  as  capable  of  being  proved  by  another  witness  as  any  other 
fact  is.^ 

'  To  be  a  part  of  the  res  gestce,  the  declarations  must  have  been  made  at  the 
time  of  the  act  done  which  they  are  supposed  to  characterize,  and  calculated  to 
unfold  the  nature  and  quality  of  the  facts  they  were  intended  to  explain,  and 
so  to  harmonize  with  them  as  obviously  to  constitute  one  transaction :  per 
Hosmer,  C.  J.,  in  Enos  v.  Tuftle,  3  Conn.  250;  Carter  v.  Buchanan^  Kelly  513. 
It  is  difBcult,  however,  to  lay  down  any  precise  general  rule  as  to  the  cases  in 
which  declarations  are  admissible  as  a  part  of  the  res  gestce;  Allen  v.  Duncan, 
11  Pick.  309 ;  Pool  V.  Bridges,  4  Pick.  378.  See  3  Cowen  &  Hill's  Phillips  589, 
note  452,  for  a  very  elaborate  and  extended  examination  of  the  American  cases. 

Where  evidence  of  an  act  done  by  a  party  is  admissible,  his  declarations, 
made  at  the  time,  having  a  tendency  to  elucidate  or  give  a  character  to  the  act, 
and  which  may  derive  a  degree  of  credit  from  the  act  itself,  are  also  admissible : 
Sessions  v.  Little,  9  N.  H.  271  ;  Russell  v.  Frishie,  19  Conn.  205;  Elkins  v. 
Hamilton,  20  Vt.  627  ;  Woods  v.  Bank,  14  N.  H.  201.  In  an  action  against  an 
individual  for  enticing  away  the  servant  of  another,  evidence  of  the  declarations 
of  the  servant  at  the  time  he  left,  as  to  the  motive  which  influenced  him,  are 
admissible :  Hadley  v.  Carter  8  N.  H.  40.  In  a  suit  where  the  question  of 
domicil  is  raised,  the  declarations  and  letters  of  the  party  whose  domicil  is  in 
dispute  are  inadmissible,  especially  if  made  previous  to  the  happening  of  the 
event  which  gave  rise  to  the  suit :  Thorndike  v.  Barton,  1  Mete.  242 ;  Kilburn 
V.  Bennet,  3  Ibid.  199  ;  Corinth  v.  Lincoln,  34  Me.  310.  It  is  error  to  exclude 
the  declarations  made  by  a  person  in  explanation  of  the  delivery  of  chattels, 
when  an  inference  unfavorable  is  sought  to  be  drawn  from  the  fact  of  delivery. 
The  declarations  made  at  the  time  are  a  part  of  the  transaction  and  proper  to 
be  given  in  evidence :  Yarhorougli  v.  Moss,  9  Ala.  382.  Where  a  bank  dis- 
counted a  note  on  condition  that  it  should  be  indorsed  by  A,  and  A  afterwards 
indorsed  the  note,  it  was  held  in  a  suit  against  A  on  the  note,  that  a  declaration 
made  by  the  cashier  to  the  directors  of  a  bank  in  session  when  the  note  was 
offered  for  discount,  that  A  would  indorse  the  note,  upon  which  declaration  the 
note  was  discounted,  was  admissible  :  Mitcliellw  Planters-  Bank,  8  Humph.  216. 
Declarations  of  a  donor  at  the  time  of  the  delivery  of  slaves,  that  they  were 
delivered  to  the  trustee,  pursuant  to  the  provisions  of  a  deed,  are  admissible  on 
the  same  principle :  Hale  v.  Stone,  14  Ala.  803.  Where  the  acts  of  parties  to  a 
transaction  are  evidence  against  the  third  persons,  their  declarations,  if  they 
are  inseparaljly  connected  with  the  acts  so  as  to  constitute  a  part  of  the  res  gestce, 
are  also  admissible:  liobertsonv.  Smith,  18  Ala.  220.  So  declarations  by  parties 
in  possession  of  real  or  personal  property  in  order  to  show  the  character  of  such 
possession :  Brazier  v.  Burt,  18  Ala.  201 ;  Clealand  v.  Huey,  18  Ala.  343;  Perry 
V.  Graham,  Ibid.  822;  Fontaine  v.  Burr,  19  lb.  722;  Marry  v.  Stone,  8  Cush.  4. 
To  make  dodaratioiis  a  part  of  the  res  gest<c,  they  must  be  contemporaneous 
with  the  main  fact;  but  in  order  to  be  contemporaneous  they  arc  not  recpiircd 
to  be  precisely  concurrent  in   point  of  time.       If  the  declarations  spring  out  of 


DECLARATIONS     OF     STRANGERS.  89 

It  sometimes  liappens  that  a  declaration  is  evidence  for  a  particu- 
lar purpose,  although  it  is  not  to  be  taken  as  evidence  to  prove  the 

the  transaction — if  they  elucidate  it — if  they  are  voluntary  and  spontaneous, 
and  if  they  are  made  at  a  time  so  near  to  it  as  reasonably  to  preclude  the  idea  of 
deliberate  design,  tliey  are  then  to  be  reii;arded  as  contemporaneous:  Mitckcson  v. 
State,  11  Ga.  G15.  The  declarations  of  a  party  paying  money,  for  the  purpose 
of  showing  the  application  or  appropriation  of  the  money  paid,  are  admissible  : 
and  when  made  at  the  time  of  payment,  they  become  part  of  the  res  gestae: 
Bank  of  Woodstock  v.  Clark,  25  Vt.  308.  On  the  other  hand,  a  holder  of  a 
check  went  into  a  bank  and  when  he  came  out  said  he  had  demanded  its  pay- 
ment. This  declaration  was  held  inadmissible  to  prove  a  demand,  as  being  no 
part  of  the  res  yesta;.  The  demand  was  the  fact  to  be  proved  :  Brown  v.  Lusk, 
4  Yerger  210.  If  the  declaration  of  a  person  is  in  itself  a  fact  in  a  transaction 
or  is  made  by  him  while  doing  an  act  and  serves  to  explain  it,  it  is  to  be  received 
in  evidence  :  but  a  recital  of  past  transactions  is  not  admissible,  although  it  may 
have  some  relation  to  the  act  which  the  person  may  be  doing  when  he  makes 
such  declaration:  Hayiies  v.  Ratter,  24  Pick.  242-,  Busicell  v.  Davis,  10  N.  H. 
413.  Where  the  plaintiff,  for  the  purpose  of  showing  the  reason  for  a  change 
of  his  residence,  offered  in  evidence  his  declarations,  made  before  and  after  it 
took  place,  not  in  the  presence  of  the  defendant,  it  was  held  that  such  declara- 
tions were  inadmissible  :  Ladd  v.  Able,  18  Conn.  513  ;  Bradford  v.  Haggerthy,  1 L 
Ala.  608  ;  Smith  v.  Webb,  1  Barb.  230.  To  make  the  declarations  of  a  party 
evidence  in  his  favor,  as  part  of  the  res  gestce,  they  must  be  connected  with  the. 
material  fact  or  inquiry  involved  in  the  issue  :  Tomkies  v.  Reynolds,  17  Ala.  109  ; 
Plumer  v.  French,  2  Fost.  450.  Before  they  can  be  received  in  evidence  in  his 
own  favor,  as  explanatory  of  his  possession  the  fact  of  possession  must  be  estab- 
lished to  the  satisfation  of  the  Court ;  otherwise  they  would  be  made  evidence 
of  the  possession  itself  or  the  title  rather  than  as  explanatory  of  the  nature  of 
the  possession  :  Thomas  v.  Degraffenreid,  17  Ala.  602.  The  declaration  of  one 
who  is  in  possession  of  personal  property,  explanatory  of  his  possession  are 
admissible ;  but  his  declarations  in  regard  to  the  contract  by  which  he  came 
into  possession  are  not  admissible  in  his  favor :  Mims  v.  Sturdevant,  23  Ala. 
664.  The  declarations  of  a  party  in  possession  of  property  explanatory  of  his 
possession  are  admissible:  Brice  v.  Lide,  30  Ala.  647:  Fellows  v.  Fellows,  37 
N.  II.  75 ;  Leger  v.  Doyle,  11  llich.  (Law)  109  ;  State  v.  Emory,  6  Jones  (Law) 
133  ;  Ellis  V.  Janes,  10  Cal.  456  ;  Yarboroiigh  v.  Arnold,  20  Ark.  592  ;  Keener  v. 
Kavffman,  16  Md.  296  ;  Taylor  v.  Lusk,  9  Iowa  444 ;  Spencer  v.  Smith,  18  N.  II. 
587  ;  Roebke  v.  Andretvs,  26  Wis.  311  ;  Thomas  v.  Wheeler,  47  Mo.  363  ;  Pier  v. 
DuJ",  13  P.  F.  Smith  59 ;  Bell  v.  Woodward,  46  N.  H.  315  ;  Gibney  v.  Manhay, 
34  N.  Y.  301 ;  Keater  v.  Dimmick,  46  Barb.  158  ;  Arthur  v.  Gaylc,  38  Ala.  259; 
Sharp  V.  Johnson,  22  Ark.  79  ;  Vennum  v.  Thompson,  38  111.  143  ;  Wallace  v. 
Wilcox,  27  Tex.  60.  Declarations  by  the  keeper  of  a  dog,  as  to  who  was  the 
owner,  are  not  admissible :  Burns  v.  Fredericks,  37  Conn.  86.  Declaration  of 
husband,  not  admissible,  to  affect  his  wife's  title  to  property :  Gillespie  v. 
Walker,  56  Barb.  185 ;  Hanson  v.  Millett,  55  Me.  184.  Acts  and  declarations 
of  wife  when  admissible  against  her  husband  :  Goodrich  v.  Tracy,  43  Yt.  314. 
Declarations  of  an  occupant  of  laud,  while  in  possession,  that  he  was  only  a 
tenant  of  another,  are  competent  evidence  in  favor  of  the  latter  against  a  third 


89  INDIRECT    EVIDENCE. 

truth  of  tlie  fact  declared ;  for  tlie  rule  seems  to  be,  that  if  the  declar- 
ation be  evidence  as  a  circumstance  in  the  cause,  for  any  purpose,  it 
is  to  be  received;  and  the  jurj  are  to  be  directed  not  to  consider  it 
as  evidence  for  other  purposes,  for  which,  abstractedly,  it  could 
not  have  been   received  ;*  as  for  instance,  "where  it  is  *used 

r*9oi 

^  "  -•  as  introductory  to  some  other  matter.  Suppose  the  question 
to  be,  Avhether  A  had  wounded  B,  if  C  had  asserted  in  the  presence 
of  A  that  he  had  seen  him  wound  B,  this  would  be  admissible  evi- 

^  In  the  case  of  Vacher  v.  Cocks,  M.  &  M.  (22  E.  C.  L.  R.)  353  ;  Lord  Tenterden 
allowed  that  part  only  of  the  letter  to  be  read  which  contained  the  refusal.  See 
further  tit.  Written  Evidence  ;  and  Willis  v.  Bernard,  8  Bin<f.  (21  E.  C.  L.  R.) 
370  ;  Whitehead  v.  Scott,  1  M.  &  Rob.  2 ;  Whitaker  v.  Ba7ik  of  England,  6  C. 
&  P.  (25  E.  C.  L.  R.)  700. 

person,  after  the  death  of  the  occupant,  but  not  before  :  Currier  v.  Gale,  14  Gray 
504.  The  declarations  of  a  previous  owner  of  land  while  owning  it,  as  to  its 
boundaries,  are  evidence  against  one  claiming  under  him  :  Cansler  v.  Fite,  5 
Jones  (Law)  424  ;  Dawson  v.  Mills,  8  Cas.  302.  The  declarations  of  an  ancestor, 
while  possessed  of  all  the  rights  claimed  through  him  are  competent  to  be  re- 
ceived against  the  claim  made  by  a  party  as  his  heir :  Little  v.  Gibson,  39  N.  H. 
505  ;  Graham  v.  Bushy,  34  Miss.  272.  The  declarations  of  the  assignor,  on  an 
issue  of  the  honajides  of  an  assignm.ent  of  a  stock  of  goods,  are  competent  evi- 
dence, if  the  alleged  assignor  remained  in  possession  of  the  goods  up  to  and 
after  the  time  the  declaration  was  made  :  Adams  v.  Davidson,  10  N.  Y.  309. 
When  a  vendor  remains  in  actual  possession  of  the  goods  after  the  sale,  his 
statements  explanatory  of  such  possession  and  of  the  relation  which  he  then 
holds  to  the  property  are  admissible  as  original  evidence  and  for  the  purpose 
of  showing  fraud  in  the  sale:  Grant  v.  Lewis,  14  Wis.  418.  The  declarations 
of  a  vendor  after  the  sale,  that  the  sale  was  a  sham,  are  not  admissible  against 
the  vendee  or  his  creditors:  Wheeler  v.  McCorresten,  24  111.  40;  Randegger  v. 
Ehrhardt,  51  111.  101  ;  Pier  v.  Diijf,  13  P.  F.  Smith  59  ;  Weinrick  v.  Porter,  47 
Mo.  293  ;  Caraicai/  v.  Caraicay,  7  Cald.  245  ;  Garraky  v.  Green,  32  Tex.  202 ; 
Baker  v.  Haskell,  47  N.  II.  479 ;  Gates  v.  Motvry,  15  Gray  564;  Outcalt  v.  Lud- 
low, 3  Vroom  239 ;  Cooke  v.  Cooke,  29  Md.  538 ;  RoUnson  v.  Petzer,  3  W.  Va. 
335 ;  Jones  v.  Morn,  36  Cal.  205 ;  Ealmark  v.  Molin,  5  Cald.  482 ;  Miner  v. 
Phillips,  42  111.  123  ;  Boicer  v.  Earl,  18  Mich.  367 ;  Pringle  v  Pringle,  19  P.  F. 
Smith  281;  Bunker  v.  Green,  48  111.  243;  nartman  v.  Diller,  12  P.  F.  Smith 
37;  Cornell  v.  Fain,  33  Ga.  219;  Hubble  v.  Osborn,  31  Ind.  249;  Vrooman  v. 
King,  36  N.  Y.  477  ;  Burroughs  v.  Jenkins,  1  Phill.  (Eq.)  33  ;  Howard  v.  Snel- 
ling,  32  Ga.  195  ;  Gill  v.  Strozier,  32  Ga.  088  ;  Vrennon  v.  Smith,  3  Head  389  ; 
Dunaway  v.  School  Directors,  40  111.  247;  Shaw  v.  Robertson,  12  Minn.  445; 
Peck  v.  Crouse,  46  Barb.  151  ;  Gregory  v.  Walker,  38  Ala.  26;  Grooms  v.  Rust, 
27  Tex.  231  ;  Thu?npson  v.  Herring,  Ibid.  282:  Carleton  v.  Baldwin,  Ibid.  572; 
Sutter  v.  Lackmann,  39  Mo.  91  ;  Hcssing  v.  McCloskaj,  37  III.  341  ;  Garner  v. 
Bridges,  38  Ala.  276;  McCleUan  v.  Cormocll,  2  Cald.  298.  Declarations  by 
grantor,  remaining  in  possession,  are  not  admissible  against  his  grantee:  Car- 
penter V.  Carpenter,  8  Bush  283.     Sec  post,  p.  467,  note. 


COLLATEHAL    EVIDENCE.  90 

denco,  but  only  as  introductory,  and  for  the  purpose  of  introducing 
and  explaining  ^'s  conduct  and  behavior  wben  the  charge  was  made, 
and  his  answer  upon  that  occasion,  and  not  as  having  any  intrinsic 
tendency  to  prove  the  fact  asserted. 

In  the  next  place,  it  is  observable  that  the  principle  is  confined  to 
tliosc  cases  Avhere  an  inference  is  attempted  to  be  made  from  the  acts, 
conduct  or  declarations  of  strangers,  on  tlie  presumption  that  tliey 
would  not  have  done  such  acts,  or  made  such  declarations,  had  not 
the  fact  so  to  be'itiferred  been  true;  and  that  it  is  the  want  of  any 
certain  or  known  connection  between  such  acts  or  declarations  and 
the  truth  of  the  fact  Avhich  occasions  the  exclusion.  Hence  it  is 
that  the  principle  does  not  extend  to  the  exclusion  of  any  of  Avhat 
may  be  termed  real  or  natural  facts  and  circumstances  in  any  way 
connected  with  the  transaction,  and  from  Avhich  any  inference  as  to 
the  truth  of  the  disputed  fact  can  reasonably  be  made.  Thus,  upon 
the  trial  of  a  p^risoner  on  a  charge  of  homicide  or  burglary,  all  cir- 
cumstances connected  with  the  state  of  the  body  found,  or  house  pil- 
laged, the  tracing  by  stains,  marks  or  impressions,  the  finding  of  in- 
struments of  violence,  or  property,  either  on  the  spot  or  elsewhere, 
in  short,  all  visible  vestigia,  as  part  of  the  transaction,  are  admitted 
in  evidence  for  the  purpose  of  connecting  the  prisoner  with  the  act. 

Such  facts  and  circumstances  have  not  improperly  been  termed 
inanimate  witnesses.  It  may  be  asked,  whether  the  same  principle 
Avhich  excludes  all  inferences  from  the  acts,  conduct  and  declara- 
tions of  others,  ought  not  also  to  exclude  such  real  circumstances ; 
for  an  artful  person  may  *not  only  deceive  by  speaking  and 
writing,  but  may  also  create  false  and  deceptive  appearances,  '-  -^ 
calculated  to  induce  others  to  draw  false  conclusions  from  them  ; 
he  may  act  as  well  as  speak  a  lie,  and  may  deceive  by  false  facts  as 
well  as  false  expressions.®     Ileal  facts,  that  is,  such  as  are  the  object 

*  An  ancient  and  celebrated  argument  supplies  an  illustration.  A  young 
man  who  was  blind,  a  resident  in  his  father's  house,  was  charged  by  his  step- 
mother with  having  assassinated  his  father  by  stabbing  him  whilst  he  slept. 
The  evidence  was  circumstantial ;  and  one  of  the  prominent  facts  urged  against 
the  son  was  the  circumstance  that  the  walls  of  the  apartments  which  separated 
the  chamber  of  the  father  from  that  of  the  son  were  smeared  with  the  impres- 
sions of  bloody  hands,  proceeding  fi-om  the  chamber  of  the  father  to  that  of  the 
son.  With  respect  to  such  evidence,  which  according  to  the  rules  of  our  law 
would  be  clearly  admissible,  it  may  be  objected  that  such  appearances  may 
have  resulted  from  the  art  and  cunning  of  another,  for  the  very  purpose  of 
implicating  the  accused  ;  and  also  it  may  be,  as  suggested  in  the  case  cited,  for 
the  further  purpose  of  screening  the  real  perpetrator  of  the  offence. 

Since,  then,  it  is  possible  that  such  appearances  may  be  the  result  of  fraud 


91  INDIRECT    EVIDENCE. 

of  actual  observation,  in  contradistinction  to  mere  recitals  of  facts, 
are  in  themselves  always  true,  Avhilst  a  mere  recital  or  statement  may 
be  wholly  false ;  and  although  collateral  circumstances,  when  con- 
sidered without  careful  comparison,  may,  either  in  consequence  of 
contrivance  and  design,  or  even  from  accident,  present  appearances 
which  tend  to  false  conclusions,  that  *tendency  is  always  sub-- 
ject  to  be  corrected  by  a  multitude  of  other  facts  which  are  ^  "'-^ 
genuine. 

The  whole  context  of  facts  must  be  consistent  with  truth  ;  to 
speak  more  properly,  they  constitute  the  truth ;  if  all  were  known, 
nothing  would  be  left  for  inquiry ;  the  greater  the  number  known, 
the  more  probable  will  it  be  that  an  artificial  or  spurious  fact,  from 
inconsistency  with  the  rest,  will  be  detected,  and  the  truth  manifested. 
This  is  the  more  evident,  when  it  is  considered  that  the  practice  of 
creating  false  appearances  must  always  be  difficult,  limited  in  its  ex- 
tent, and  constantly  subject  to  detection  and  exposure  from  a  com- 
parison of  the  deceptive  fact  with  such  as  are  undoubtedly  genuine. 

By  way  of  illustration,  the  following  instance  may  be  selected  :  A 
person  having  been  robbed  and  murdered,  the  body  is  so  placed  by  the 
offender,  with  a  discharged  pistol  beside  it,  as  naturally  to  induce  the 
inference  that  the  deceased  had  fallen  by  his  own  hand ;  but  on  close 
examination,  it  is  discovered  that  the  ball  extracted  from  the  body, 
and  which  occasioned  death,  is  too  large  to  have  been  discharged  from 
that  pistol,  an  inconsistency  which  immediately  detects  the  imposture, 
and  refutes  the  false  inference  to  which  some  of  the  circumstances 
apparantly  tend. 

The  general  admission,  therefore,  of  evidence  of  the  actual  visible 
state  of  things,  in  the  absence  of  any  special  reason  for  suspecting 
fraud  is  quite  consistent  with  the  exclusion  of  statements  or  declara- 

and  artifice,  ought  they  to  be  admitted?  or,  at  least,  are  they  not  subject  to  the 
same  oljjection  which  is  urj^ed  against  receiving  evidence  of  the  declarations  or 
writings  of  others?  The  answer  seems  to  be,  that  although  a  possibility  exists 
that  such  appearances  may  have  resulted  from  contrivance  and  design,  yet  that 
much  less  danger  is  to  be  apprehended  from  the  reception  of  such  evidence  of 
actual  facts  than  would  result  from  receiving  evidence  of  mere  statements  of 
facts. 

In  the  case  above  supposed,  two  circumstances  tended  to  show  that  the  traces 
on  tlic  Willis  wore  the  result  of  artifice  and  imposture.  The  accused  being 
blind,  night  to  him  was  the  same  as  the  day,  and  being  familiar  with  the  apart- 
ments, he  wanted  not  the  walls  for  liis  guidance.  The  impressions  on  the  walls 
were  all  equally  clear  and  distinct;  had  they  been  natural  and  genuine,  they 
would   have  gradually  become  faint  and  indistinct. 


ANCIENT    INSTRUMENTS.  92 

tions,  as  contradistinguished  from  real  facts ;  such  statements  may 
be  altogether  fictitious ;  they  are  easily  invented,  and  would  therefore 
be  the  more  dangerous,  because  if  they  were  to  be  admitted  to  any 
credit,  they  would  usually  be  conclusive.  At  all  events,  there  is  a 
strong  practical  necessity  for  resorting,  especially  in  criminal  pro- 
ceedings, to  the  aid  of  circumstantial  evidence;  the  conseciuences 
would  be  infinitely  mischievous  if  such  evidence  were  to  be  excluded ; 
and  the  real  practical  result  from  any  suggestions  as  to  the  r*nq-| 
*probability  of  fraud  and  deception  being  practised  through 
the  medium  of  such  evidence,  is,  that  it  ought  in  all  cases  to  be  re- 
ceived and  acted  on  in  the  highest  degree  of  caution  and  circum- 
spection. 

As  the  possession  and  enjoyment  of  disputed  property  are  always 
indirect  evidence  of  right,  by  reason  of  the  obvious  and  natural  pre- 
sumption, when  the  right  is  in  other  respects  doubtful,  that  such 
possession  and  enjoyment  so  acquiesced  in  had  a  lawful  origin  ;  so, 
acts  of  open  delivery  of  possession,  or  written  instruments  by  which 
a  dominion  over  such  property  was  exercised,  and  with  which  the 
possession  and  enjoyment  correspond,  are  also  presumptive  evidence 
of  right ;  for  these  are,  in  fact,  not  mere  recitals  of  a  fact,  but  are  of 
themselves  acts  of  dominion  and  ownership.  Hence,  when  such  in- 
struments are  so  ancient  that  their  connection  with  acts  of  enjoyment 
and  dominion  cannot  be  proved  by  the  testimony  of  living  witnesses, 
they  are  nevertheless  admissible  as  the  best  and  most  proximate 
evidence  to  explain  the  origin  and  nature  of  such  possession  and  en- 
joyment, Avhere  they  can  by  other  evidence  be  sufficiently  connected 
with  those  facts. 

Hence  it  seems  that  to  support  any  presumption  or  inference  from 
such  an  instrument,  first,  its  antiquity  is  essential;  secondly,  that  it 
should  have  been  found  in  the  place  or  repository  in  which  a  true  or 
genuine  deed  or  writing  of  that  kind  would  have  been  deposited  ;^ 
thirdly,  that  it  should  be  free  from  all  suspicion  which  may  rebut  the 
presumption  raised  in  its  favor  ;^  and,  fourthly,  in  order  to  give  it 
any  weight,  it  should  be  supported  by  proof  of  possession  or  enjoy- 
ment, corresponding  and  consistent  with  it.''  Upon  such  a  connection 
the  force,  if  not  the  admissibility,  of  such  evidence  essentially  de- 
pends. Declarations  are,  as  has  been  seen,  evidence  as  explanatory 
of  the  act  which  they  accompany ;  and  where  long-continued  enjoy- 

'  Vide  infra,  Private  Writings — Ancient  Deeds. 
8  Ibid.  "^  Ibid. 


94  INDIRECT    EVIDENCE. 

ment,  and  user  of  a  right  have  been  *proved,  extending  as  far 

r*941  -r.       •  •  ?     1 

L       -^    back   as   the  duration  of  human  life  will  permit,  a  deed  or 

writing  which  is  consistent  with  such  usage  and  enjoyment,  and  ex- 
planatory of  it,  may,  under  the  same  principle,  be  fairly  admitted,  as 
affording  a  presumption  that  it  was  a  genuine  instrument  wliich  has 
been  used  and  acted  on.  And  where  proof  of  the  actual  execution 
and  use  of  such  instruments  would  have  been  evidence,  then  when 
such  proof  is  absolutely  excluded  by  lapse  of  time,  the  production  of 
the  deed,  coupled  with  such  circumstances  as  give  it  credit,  appears 
to  be  the  next  best  evidence  which  the  case  admits  of,  and  when 
accompanied  with  proof  of  actual  enjoyment,  affords  a  strong  pre- 
sumption as  to  the  existence  of  the  right  according  to  that  deed. 
Hence,  ancient  licenses  on  the  court-rolls,  granted  by  the  lords  of  a 
manor  in  consideration  of  certain  rents,  to  fish  in  a  particular  river, 
are  evidence  to  prove  a  prescriptive  right  of  fishery  in  that  river, 
without  any  proofs  of  the  rents  being  formerly  paid,  where  it  appears 
that  such  rents  have  been  paid  in  modern  times,  or  that  the  lords  of 
the  manor  have  exercised  other  rights  of  ownership  over  the  fishery.' 
But  it  was  held  that  to  give  any  weight  to  such  evidence,  it  was 
necessary  to  support  it  by  evidence  of  payments,  or  of  acts  of  owner- 
ship."^  And  where  the  question  was,  whether  in  a  particular  manor 
a  custom  existed  that,  after  the  turbary  had  been  cleared  away  from 
a  certain  moss,  the  lord  had  a  prescriptive  right  to  hold  the  land 
cleared,  free  from  all  right  of  common,  it  was  held  (in  an  action 
between  a  grantee  of  the  land  and  one  Avho  claimed  common  in  the 
loeus  in  quo,  in  respect  of  an  ancient  messuage)  that  counterparts  of 
old  leases  found  among  the  muniments  of  the  lord  of  the  manor,  by 
which  such  cleared  portions  of  the  moss  had  from  time  to  time  been 
granted  by  the  lord,  were  admissible  in  evidence,  although  they  w^ere 
so  old  that  no  one  could  speak  to  possession  under  them.     It  was 

*obiected,  both  at  the  trial  and  on  a  motion  for  a  new  trial, 

r*951  o 

L       -•    that  such  evidence  ought  not  to  be  admitted  without  proof  of 

enjoyment  under  those  leases.     But  the  court  held  that  it  was  clear 

that  such  leases  might  be  given  in   evidence ;   they  only  showed  the 

existence  of  a  fact,  viz.,  that  at  the  time  of  the  dates  of  the  leases  the 

lord  granted  the  land  after  the  moss  had  been  taken  away.^^ 

'  Rogers  and  others  v.  Allen,  cor.  Heath,  J.,  1  Camp.  309. 

^  Per  Heath,  J.,  1  Camp.  311. 

'  Clarkson  v.  Woodhouse,  5  T.  R.  412. 


'  For  a  very  full  collection  of  the  Amoricun  authorities  see  note  903,  4  Cowen 
&  Iliir.s  I>!iillipH  1310. 


EXPLANATORY  DECLARATIONS.  95 

It  is  to  be  observed  that  oral  or  written  declarations,  although  ex- 
cluded as  direct  evidence  of  a  fact,  bj  the  rules  which  govern  the 
reception  of  such  evidence,  may  still  in  many  instances  be  used  in- 

The  English  law  upon  this  subject  seems  very  generally  adopted  in  the  United 
States,  and  ancient  deeds  accompanying  possession  are  admitted  in  evidence 
without  further  proof:  Carroll  v.  Nnrivood,  1  liar.  &  John,  167 ;  Sims  v, 
Deijraffcnrcicl,  4  McCord  253;  Waldron  v.  Tuttle,  4  N.  H.  371  ;  Thompson  y. 
Bullock,  1  Bay  304  ;  Thrusion  v.  3fasterson,  9  Dana  228 ;  Brown  v.  Witter,  10 
Ohio  142;  McClushj  v.  Leadbetter,  1  Kelly  551;  Doe  v.  Eslava,  11  Ala.  1028; 
Winston  v.  Gwathmey,  8  B.  Mon.  19 ;  Homer  v.  Cillcy,  14  N.  H.  85 ;  Troup  v. 
Hurlhut,  10  Barb.  Sup.  Ct.  527  ;  Carter  v.  Chaudron,  21  Ala.  72.  Ancient 
records,  when  accompanied  by  an  admission  that  they  come  from  the  proper 
depository,  are  admissible  in  evidence  without  proof  of  their  authenticity : 
Little  v.  Downing,  37  N.  11.  355.  The  rule  of  evidence  for  ancient  documents 
is  that  they  must  have  the  appearance  of  due  antiquity  and  of  genuineness;  they 
must  be  procured  from  the  proper  custody,  and  be  corroborated  by  such  acts  of 
the  parties  as  correspond  with  their  tenor :  Law  v.  Mumma,  7  Wright  267.  There 
must  be  no  erasures  or  alterations:  Roberts  \.  Stanton,  2  Munf.  129.  The 
antiquity  alone  of  a  deed  apparently  defective  is  not  sufficient  to  justify  the 
presumption  of  its  due  execution :  Williams  v.  Bass,  22  Vt.  352. 

As  to  the  nature  and  extent  of  the  possession  required,  it  has  been  decided 
that  where  there  was  continued  possession  for  six  years,  under  a  deed  thirty 
years  old,  which  was  recorded  about  the  time  it  was  executed,  there  having 
been  no  possession  inconsistent  with  the  deed,  it  should  be  received :  Robinson 
V.  Craig,  1  Hill  (S.  C.)  389.  So  where  possession  for  five  years  was  proved: 
Wagner  \.  Acton,  1  Kice  100.  In  New  York  and  some  other  of  our  sister  states, 
and  perhaps  in  England,  it  seems  to  be  settled  that  a  deed  appearing  to  be  of 
the  age  of  thirty  years  may  be  given  in  evidence  without  proof  of  its  execution, 
either  by  showing  an  accompanying  possession,  or,  when  there  has  been  none 
such,  rendering  such  an  account  of  it  as  will  afford  a  reasonable  presumption 
of  its  being  genuine.  It  has  been  said  by  authority  highly  respectable,  that 
almost  any  evidence,  intrinsically  unobjectionable,  and  tending  to  raise  a  pre- 
sumption of  the  fairness  of  the  instrument,  may  be  received,  leaving  its  suf- 
ficiency to  depend  on  the  nature  of  each  particular  case :  Jackson,  ex  dem.  Lewis, 
V.  Zarowey,  3  Johns.  Cas.  283 ;  Hewlett  v.  Cock,  7  Wend.  371  ;  though  it  must 
be  confessed  that  in  Pennsylvania  the  leaning  of  the  determinations  is  in  favor 
of  the  more  rigid  rule  which  refuses  to  accept  of  anything  short  of  actual  pos- 
session, as  corroborative  of  the  supposed  deed.  But  where  the  issue  litigated 
involves  the  title  of  wild  and  uncultivated  lands,  which  have  never  been  the 
subject  of  an  actual  pedis  possessio,  the  question  assumes  a  very  different  aspect. 
In  such  cases  the  payment  of  taxes  assessed  upon  the  unseated  land  for  a  number 
of  years,  is  for  many  purposes,  esteemed  equivalent  to  actual  possession  :  Per 
Bell,  J.,  in  Williams  v.  Hillegras,  5  Barr  494.  Proof  that  a  deed  of  land  is 
more  than  thirty  years  old,  without  other  circumstances,  is  no  evidence  of  its 
authenticity,  especially  when  no  possession  has  been  taken  under  it,  and  the 
land  has  been  held  adversely,  although  the  deed  is  shown  to  have  been  in  the 
custody  in  which  it  would  have  been  likely  to  be  if  genuine :  Willson  v.  Belts, 
4  Denio  201  ;  Ridgeley  v.  Johnson,  11  Barb.  Sup.  Ct.  527. 


95  INDIRECT    EVIDENCE. 

directly  as  explanatory  of  other  evidence.  Thus,  though  a  letter, 
stating  particular  facts,  could  not  be  read  in  evidence  merely  because 
it  was  sent,  yet  if  the  party  to  whom  it  was  addressed  wrote  an 
answer,  such  answer  might  be  read  as  evidence  against  the  party 
who  wrote  it,  and  the  letter  to  which  it  was  an  answer  would  be  ad- 
missible for  the  purpose  of  explaining  such  answer.^ 

So  letters  and  declarations,  in  themselves  inadmissible,  are  admis- 
sible if  they  communicate  any  fact  to  the  party  against  whom  they 
are  read  which  either  affects  the  rights  in  question  or  explains  his 
subsequent  conduct."  Thus  the  proof  of  notice  of  the  dishonor 
of  a  bill  of  exchange  to  a  drawer  or  indorser  is  evidence,  not  of  the 
fact  of  dishonor  stated  in  the  notice,  but  because  such  notice  casts 
a  legal  liability  on  the  party  to  whom  it  was  given.  So  again,  in  an 
action  on  a  policy  of  insurance,  for  a  libel,  keeping  a  mischievous 
animal,  malicious  prosecution,  and  indeed  in  any  other  case  where 
the  knowledge,  motives,  or  intentions  of  the  parties  were  material, 
communications,  whether  oral  or  written,  may  be  very  important  evi- 
dence, though  not  of  the  truth  of  the  facts  communicated,  yet  for 

"  See  further,  as  illustrative  of  this  principle,  Cotton  v.  James,  M.  &  M.  (22 
E.  C.  L.  R.)  273  ;  Taylor  v.  Williams,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  845. 

^  The  defendant,  having  read  a  letter  from  the  plaintiff's  agent  in  answer  to 
a  letter  from  himself,  cannot  give  in  evidence  a  copy  of  his  own  letter,  without 
proving  it  to  be  a  true  copy,  by  a  witness :  Smith  v.  Carrivgton,  4  Cranch  61. 
A  letter  written  by  the  plaintiffs  to  the  defendants  and  received  by  them  being 
in  answer  to  one  by  the  defendants  to  the  plaintiffs,  vrhich  had  been  read  as 
evidence  in  the  cause,  having  been  filed  by  the  defendants  and  read  by  them  on 
a  former  trial,  was  held,  under  the  circumstances,  to  be  competent  for  the  plain- 
tiffs :  Dowries  v.  Morrison,  2  Gratt.  250.  A  letter  written  by  the  plaintiff  to  the 
defendant,  relative  to  the  subject-matter  of  the  suit,  although  written  after  the 
commencement  of  the  suit  and  a  reply  thereto  by  the  defendant,  are  together 
admissible  on  the  part  of  the  plaintiff:  Holler  v.  Weiner,  3  Harris  242.  A  party 
to  a  suit  cannot  be  permitted  to  read  an  unanswered  letter  from  himself  to  the 
adverse  party,  for  the  purpose  of  proving  the  truth  of  facts,  stated  therein,  al- 
though it  was  in  reply  to  a  letter  to  himself  which  he  has  put  in  evidence : 
Fearing  v.  Kimball,  4  Allen  125.  The  omission  of  a  party  to  reply  to  state- 
ments in  a  letter  about  which  he  has  knowledge,  and  which  if  not  true  he  would 
naturally  deny,  is  evidence,  but  of  a  lighter  character  than  silence  when  the 
same  facts  are  directly  stated  to  him:  Fenno  v.  Weston,  31  Vt.  345;  Greenfield 
Bank  v.  Crafts,  2  Alien  269.  As  to  when  letters  are  evidence,  see  Newton  v. 
Price,  41  Ga.  186  ;  llusenstock  v.  Forney,  32  Md.  169 ;  Stockham  v.  Stockham,  Ibid. 
106.  A  letter  and  the  answer  thereto  are  subject  to  the  same  rule  as  applies  to 
a  conversation.  If  part  is  given  in  evidence  by  one  party,  the  other  party  is 
ciititlfd  to  have  the  wliolc  produced  :  Livermore  v.  St.  John,  4  Hob.  12 ;  Mclntyre 
v.  ll'irris,  II  Miss.  81. 


EXPLANATORY  DECLARATIONS.  95 

judging  as   to   the  motives,  intention  and   honesty  of  the  party  to 
Avhom  the  communication  was  made. 

*0f  the  class  of  facts  which  require  proof  by  means  of  in-  r:>:n('-| 
direct  evidence,  there  are  some  of  so  peculiar  a  nature  that 
juries  cannot  without  other  aid  come  to  a  direct  conclusion  on  the 
subject.  In  such  instances,  where  the  inference  requires  the  judg- 
ment of  persons  of  peculiar  skill  and  knowledge  on  the  particular 
subject,  the  testimony  of  such  as  to  their  opinion  and  judgment  upon 
the  facts,  is  admissible  evidence  to  enable  the  jury  to  come  to  a  cor- 
rect conclusion.  Thus  the  relation  between  a  particular  injury  in- 
flicted on  a  man's  body  and  the  death  of  that  man,  is  an  inference 
to  be  made  by  medical  skill  and  experience,  and  may  be  proved  by 
one  who  possesses  those  qualifications.  So  again,  where  the  ques- 
tion is  as  to  a  general  result  from  books  or  accounts  of  a  voluminous 
nature,  the  general  result  from  them  may  be  proved  by  the  testi- 
mony of  one  who  has  examined  them." 

^  A  practical  surveyor,  in  testifying  respecting  marks  on  trees  or  piles  of  stones, 
may  express  his  opinion  whether  they  were  intended  as  monuments  of  bounda- 
ries :  Davis  v.  Mason,  4  Pick.  156.    See  also  U.  States  v.  Gibert,  2  Sumn.  93.   G. 

A  land  surveyor  testified  that  he  had  run  out  the  lines  of  lots  surveyed  by  a 
former  surveyor,  and  was  familiar  with  his  mode  of  making  corners,  and  then 
testified  to  certain  marks  upon  certain  alleged  corners,  as  having  been  made  by 
the  former  surveyor :  Held,  that  his  belief  that  the  marks  were  those  made  by 
the  former  surveyor  was  not  evidence  to  be  received  by  the  jury  as  the  opinion 
of  an  expert,  I)ut  was  merely  the  testimony  of  a  witness  to  a  fact  Avithin  his 
knowledge,  and  was  to  be  credited  by  the  jury  only  so  far  as  they  believed  him 
able  from  his  personal  knowledge  to  identify  the  marks  in  question :  Barrow  v. 
Cobleigh,  11  N.  II.  557  ;  Mcsser  v.  Beginniter,  32  Iowa  312.  When  the  opinion 
of  an  expert  is  offered  in  evidence,  the  court  may  hear  evidence  to  ascertain 
whether  he  is  an  expert,  and  then  allow  the  opinion  to  be  given  to  the  jury: 
Menclum  v.  Comm^th,  6  Rand.  704.  This  may  be  done  either  by  examining  the 
witness  himself  or  from  the  testimony  of  others:  TulJis  v.  Kidd,  12  Ala.  648. 
A  witness  cannot  testify  as  to  value  until  he  has  been  shown  to  be  competent  to 
speak  upon  the  subject:  Bank  of  Comm'th  v.  Mudgett,  44  N.  Y.  514;  Bedell  v. 
Long  Island  R.  R.  Co.,  44  N.  Y.  367  ;  Swan  v.  Middlesex  County,  101  Mass.  173  ; 
Snyder  v.  Western  Union  R.  R.  Co.,  25  Wis.  60 ;  Browning  v.  Long  Island  R.  R. 
Co.,  2  Daly  117  ;  Brackett  v.  Edgerton,  14  Minn.  174;  Allis  v.  Day,  Ibid.  516. 
Witnesses  may  testify  to  the  market  price  of  cattle  derived  from  the  newspapers  : 
Cleveland  R.  R.  Co.  v.  Perkins,  17  Mich  296.  A  witness,  who  bases  his  calcu- 
lations of  the  value  of  foreign  money  upon  newspaper  quotations  of  the  value 
of  gold,  is  not  competent  as  an  expert  to  prove  the  value  of  such  foreign  money  : 
Schmidt  v.  Herfurth,  5  Rob.  124.  The  value  of  a  living  animal,  as  a  stallion, 
may  be  proved  by  witnesses  to  his  reputation :  Millan  v.  Davis,  66  N.  C.  539. 
AVhether  two  pieces  of  wood  were  parts  of  the  same  stick  of  natural  growth  is 
a  question  for  the  testimony  of  experts:  Comm'th  v.  Choate,  105  Mass.  451.    An 


96  ARTIFICIAL    EVIDENCE. 

CHAPTER  V. 

ARTIFICIAL  EVIDENCE. 

Thus  far  the  law  controls  the  admission  of  ordinary  evidence,  by 
the  application  of  excluding  tests  ;  it   is  next  to  be   considered  how 

expert  in  Ijookkeeping  cannot  be  asked  whether  the  books  of  a  person,  when 
solvency  is  in  question,  show  that  such  person  was  insolvent :  Persse  Paper 
Wo7-Jcs  V.  Willett,  1  Rob.  131.  As  a  general  rule  the  opinion  of  witnesses  is  not 
to  be  received  in  evidence,  merely  because  they  may  have  had  some  experience 
or  greater  opportunies  of  observation  than  others,  unless  they  relate  to  matters 
of  skill  or  science:  Robertson  y.  Stark,  15  N.  H.  109;  Lush  v.  McDaniel,  13 
Ired.  485;  McLean  v.  State,  16  Ala.  672;  Luning  v.  State,  1  Chand.  178. 
Opinion  of  a  matter  within  common  experience  is  not  evidence :  Gavish  v. 
Pacijic  E.  B.  Co.,  49  Mo.  274 ;  Cannell  v.  Phoenix  Ins.  Co.,  59  Me.  582 ;  State 
V.  Pike,  49  N.  H.  399 ;  Messner  v.  People,  45  N.  Y.  1 ;  Sloan  v.  Neio  York  R.  R. 
Co.,  45  N.  Y.  125 ;  McComhs  v.  N.  C.  R.  R.  Co.,  67  N.  C.  193.  The  opinion  of 
a  witness  is  not  admissible,  except  of  a  professional  man  in  a  matter  depending 
on  science  or  skill  in  his  particular  art,  or  when  it  is  necessary  from  the  nature 
of  the  inquiry,  as  for  example  as  to  the  sanity  of  a  person,  but  this  must  be 
from  personal  observation  of  the  part'cular  case,  unless  the  witness  be  a  pro- 
fessional man  :  Lester  V.  Pittsford,  7  Yt.  161;  Doe  v.  Reagan,  5  Blackf.  217; 
Milton  V.  Rowland,  11  Ala.  732.  The  opinions  of  medical  men  may  be  asked 
upon  supposed  cases  similar  to  the  one  before  the  court :  State  v..  Poicell,  2 
Halst.  244 ;  Lnnijig  v.  State,  1  Chand.  178  ;  77.  S.  v.  McGlue,  1  Curtis  C.  C.  1. 
And  it  is  not  confined  to  medical  men.  but  extends  to  all  other  professions  and 
trades  :  Price  v.  Powell,  3  Comst.  322  ;  Smith  v.  Gugerty,  4  Barb.  Sup.  Ct.  614  ; 
Steamboat  Cbpper  y.  Logan,  18  Ohio  375;  State  v.  Cheek,  13  Ired.  114.  A 
dealer  in  produce  is  a  competent  witness  in  regard  to  the  market  value,  at  a 
particular  time,  of  an  article  in  which  he  deals,  though  his  knowledge  of  such 
value  at  that  time  is  derived  from  his  correspondents  in  business :  Laurent  v. 
Vaughn,  30  Vt.  90.  Reports  in  newspapers  of  the  state  of  the  markets  are 
admissible:  Sisson  v.  Cleveland  R.  R.  Co.,  14  Mich.  439.  Engineers,  well 
diggers,  farmers  and  gardeners  are  competent  witnesses  on  a  subject  of  drainage: 
Bxiffum  V.  Harris,  5  R.  I.  243.  The  testimony  of  lawyers  as  experts  to  the  law 
of  another  state :  Wilson  v.  Carson,  12  Md.  54.  Any  practising  physician  is 
competent  to  express  an  opinion  as  an  expert  on  a  medical  question :  Livingston' s 
case,  14  Grat.  592.  But  see  Comm.  v.  Rich,  14  Gray  335 ;  Fairchild  v.  Bascomb, 
35  Vt.  398  ;  Emerson  v.  Lowell  Gas  lAght  Co.,  6  Alien  146  ;  New  Orleans  Co.  v. 
Allbretton,  38  Miss.  242.  A  stock  raiser  is  an  expert  who  may  testify  to  the 
extent  of  an  injury  and  damages  received  by  cattle  from  falling  through  a 
wharf:  Polk  v.  Coffin,  9  Cal.  56.  As  to  who  are  experts  :  Withee  v.  Roice,  45 
Me.  571  ;  Dickenson  v.  Fitchlnirg,  13  Gray  546  ;  Bearss  v.  Copley,  10  N.  Y.  93  ; 
Van  Deusen  v.  Young,  29  Barb.  9;  Harris  v.  Panama  Railroad  Co.,  3  Bosw.  7; 
Bell  v.  Morrisctt,  6  Jones  (Law)  178;  Walker  v.  Fields,  28  Ga.  237;  Montgomery 
v.  Gilmer,  33  Ala.  116;  Jones  v.  Finch, Zl  Miss.  461 ;  Carry.  Northern  Liberties, 
11  Cas.  324;   Hyde  v.  Woolfolk,  1  Clarke   159;   Page  y.  Parker,  40  N.  II.  47; 


ARTIFICIAL    EVIDENCE.  96 

far  the  law  interferes  to  create  evidence,  or  to  add  to  its  eflScacy  by 
artificial  means. 

Blodgctt  Co.  V.  Farmer,  41  Ibid.  398;  Weaver  v.  Alabama  Co.  35  Ala.  176; 
Bellefontaine  Railroad  Co.  \.  Bailey.,  11  Ohio  (N.  S.)  333;  Seaver  v.  Boston 
Railroad  Co.^  14  Gray  466  ;  Crane  v.  Northfield,  33  Vt.  124;  Beircc  v.  Slocking, 
11  Gray  174;  Dubois  v.  Baker,  40  Barb.  556;  Boardmanv.  Woodman,  47  N.  H. 
120;  Whitney  v.  Boston,  98  Mass.  312;  Kennedy  v.  People,  39  N.  Y.  245; 
Stuckey  v.  Bellant,  41  Ala.  700 ;  Detroit  R.  R.  Co.  v.  Van  Steinburg,  17  Mich. 
99 ;  Doare  v.  Garretson,  24  Iowa  351  ;  Noonan  v.  Noley,  22  Wis.  27  ;  i/^i7^  v. 
Portland  R.  R.  Co.,  55  Me.  438  ;  Cavendish  v.  Troy,  41  Vt.  99 ;  Davis  \.  Elliott, 
15  Gray  90;  Brotvn  v.  Hoburger,  52  Barb.  15;  Cooke  v.  England,  27  Md.  14; 
Dailey  v.  Grimes,  27  Md.  440 ;  Woodward  v.  Gates,  38  Ga.  205 ;  Macon  R.  R. 
Co.  V.  Johnson,  Ibid.  409  ;  Ctor/c  v.  Willett,  35  Cal.  534 ;  Graves  v.  Muses,  13 
Minn.  335 :  J'/mj/er  v.  Chesley,  55  Me.  393 ;  DoZe  v.  Johnson,  50  N.  H.  452 ; 
Tenney  v.  A'ew?  Jersey  Steamboat  Co.,  5  Law  507;  12  Abb.  Pr.  N.  S. ;  Shelton  v. 
State,  34  Tex.  662;  Eldredge  v.  Smith,  13  Allen  140;  Lyman  v.  /S^a^e  //is.  Co., 
14  Allen  329 ;  Enright  v.  Sail  Francisco  R.  R.  Co.,  33  Cal.  230 ;  Norton  v. 
.1/bore,  3  Head  480  ;  Moore  v.  State,  17  Ohio  St.  521;  5en'^  v.  Reed,  53  Me.  487; 
Beakard  v.  Babcock,  2  Rob.  175  ;  Schmidt  v.  Hepworth,  5  Rob.  124  ;  Barnes  v. 
Ingalls,  39  Ala.  193  ;  A'erji  v.  South  St.  Louis  Ins.  Co.,  40  Mo.  19 ;  Schmidt  v. 
Peoria  Marine  Ins.  Co.,  41  111.  295;  Jf^esson  v.  Washburn  Iron  Co.,  13  Allen 
95 ;  Jeffersonville  R.  R.  Co.  v.  Lanhan,  27  Md.  171  ;  Mowry  v.  Chase,  100  Mass. 
79  ;  i\"o;-<on  v.  C?-ee7i,  64  N.  C.  64  ;  State  v.  Ward,  39  Vt.  225  ;  Kendall  v.  .l/a,y, 
10  Allen  59 ;  Robertson  v.  Knapp,  35  N.  Y.  91 ;  Pierson  v.  aoM^r,  47  Barb.  243 ; 
Spiva  V.  Stapleton,  38  Ala.  171 ;  CAeeA;  v.  State,  Ibid.  227;  CaZe6  v.  State,  39 
Miss.  721  ;  Thompson  v.  Bertrand,  23  Ark.  730;  P/ieZps  v.  2bw?i,  14  Mich.  374; 
Carroll  v.  Welch,  26  Tex.  147:  Moulton  v.  McOwen,  103  Mass.  587;  Smithy. 
Kabbe,  59  Barb.  289  ;  State  v.  Wilcox,  57  Barb.  604  ;  Ardisco  Oil  Co.  v.  Gibson, 
13  P.  F.  Smith  146;  Sory  v.  First  German  Congregation,  Ibid.  156;  Z-aAre  v. 
Wilcox,  55  Barb.  615. 

Neither  professional  nor  unprofessional  witnesses  can  give  an  opinion  as  to 
mental  capacity  or  condition  without  first  showing  the  facts  upon  which  the 
opinion  is  founded :  White  v.  Bailey,  10  Mich.  155.  As  to  the  testimony  of 
experts  or  non-experts  on  a  question  of  sanity :  Dunham's  Appeal,  11  Conn. 
192;  Walker  v.  Walker,  34  Ala.  469  ;  Deshon  v.  Merchants'  Bank,  8  Bosw.  411. 
The  proper  mode  of  inquiry  to  obtain  the  opinion  of  an  expert  upon  the  case 
as  shown  by  the  proof,  is  to  ask  him  what  his  opinion  is  upon  a  state  of  facta, 
such  as  appears  from  the  evidence,  hypothetically  stated:  Spear  v.  Richardson, 
37  N.  H.  23 ;  Woodbury  v.  Obear,  7  Gray  467  ;  Champ  v.  Comm.,  2  Mete. 
(Ken.)  17  ;  Perkins  v.  Concord  Railroad,  44  N.  H.  223.  A  physician  is  admis- 
sible as  an  expert  on  a  question  of  sanity,  although  he  has  not  made  diseases  of 
the  mind  a  special  study :  State  v.  Reddick,  7  Kans.  143.  So  he  may  be 
examined  as  to  injuries  done  to  the  eye  of  a  party  by  violence,  although  he 
may  not  be  a  surgeon  or  an  oculist :  Castner  v.  Sliker,  33  N.  J.  (Law)  95,  507. 
Whether  a  child  was  a  full-time  child  may  be  testified  to  by  any  physician  of 
ordinary  experience  :  Young  v.  Makepeace,  103  Mass.  50.  Any  witness,  not  an 
expert,  who  knows  the  facts  personally,  may  give  an  opinion  in  a  matter 
requiring   skill,    stating   also    the   facts   upon   which   he   bases   the    opinion : 


96  ARTIFICIAL    EVIDENCE. 

It  is  essential,  in  the  first  place,  that  the  law  should  provide  the 
means  of  preserving  public  statutes  and  ordinances,  the  decrees  and 
judgments  of  its  Courts,  and  many  other  transactions  of  public  in- 
terest, and  for  authenticating  them  as  such  when  it  should  become 
necessary  ;  and  it  is  also  essential  to  the  convenience  of  individuals 
that  the  evidence  of  their  mutual  dealings  and  engagements  should 
not  be  left  to  depend  on  the  defective  memories  of  living  witnesses, 

Indianapolis  v.  K%iffer,  30  Ind.  235 ;  Alabama  R.  R.  Co.  v.  Burkett,  42  Ala.  83. 
The  opinion  of  a  non-professional  witness  as  to  sanity  is  inadmissible  :  Real  v. 
People,  55  Barb.  551,  579;  8  Abb.  Pr.  N.  S.  314;  O'Brien  v.  Peojyle,  48  Barb. 
275.  As  to  non-professional  witnesses  on  questions  of  sanity,  see  Real  v.  People, 
42  N.  Y.  270.  A  subscribing  witness  may  give  his  opinion  of  the  testator's 
capacity  without  the  facts  upon  which  it  is  founded  :  Tetlow  v.  Tetlow,  4  P.  F. 
Smith  216;  Elder  v.  Ogleton,  36  Ga.  64.  It  does  not  require  an  expert  to  prove 
intoxication  :  Castner  v.  Sliker,  33  N.  J.  (Law)  95,  507.  As  to  matters  of 
opinion  by  persons  not  experts,  see  Comm.  v.  Dorsey,  103  Mass.  412;  Parsons  y. 
Manufacturers'  Ins.  Co.,  82  Mass.  443  ;  Taylor  v.  Grand  Trunk  R.  R.  Co.,  38  N. 
K.  304.  A  physician  may  be  asked  his  opinion  as  to  the  cause  of  a  disease, 
but  he  must  state  the  facts  upon  which  his  opinion  is  founded:  Mattesonx.  New 
York  R.  R.  Co.,  62  Barb.  364.  Medical  experts  are  not  allowed  to  testify 
categorically  on  the  merits  of  the  cause,  but  only  hypothetically :  Fingley  v. 
Cowgill,  48  Mo.  291.  An  expert  cannot  undertake  to  determine  what  is  shown 
by  the  evidence,  and  upon  that  give  an  opinion :  Phillips  v.  Starr,  26  Iowa  349 ; 
Wright  v.  Hardy,  22  Wis.  348.  Marble-masons  cannot  be  called  to  prove  the 
meaning  of  a  written  contract  to  erect  a  monument :  Sanford  v.  Rawlings,  43 
111.  92.  An  expert  may  be  asked  upon  a  state  of  facts  already  established,  or 
upon  an  hypothetical  case  :  Hoard  v.  Peck,  56  Barb.  202 ;  Crawford  v.  Wolf 
29  Iowa  567  ;  State  v.  Klinger,  46  Mo.  224 ;  Carpenter  v.  Blake,  2  Lans.  206  ; 
Kempsey  v.  McGinniss,  21  Mich.  123.  As  to  opinions  of  medical  witnesses  of 
injuries,  see  Matteson  v.  Kew  York  R.  R.  Co.,  35  N.  Y.  487 ;  Fort  v.  Brown,  46 
Barb.  366.  Proof  of  a  foreign  law  may  be  made  either  by  volumes  of  the 
statutes  received  under  the  authorized  reciprocal  interchange  of  statutes,  or  by 
competent  parol  evidence :  De  Rothschild  v.  United  States,  6  Ct.  of  CI.  204 ; 
Dauphin  v.  United  States,  Ibid.  221.  In  proof  of  the  laws  of  a  foreign  country, 
the  testimony  of  any  person,  whether  a  professional  lawyer  or  not,  who  appears 
to  the  court  to  be  well  informed  on  the  point,  is  competent:  Hall  v.  Costella,  48 
N.  II.  176;  Dauphin  V.  United  States,  6  Ct.  of  CI.  221.  The  evidence  of  experts 
is  to  be  received  with  caution :  Grigshy  v.  Clear  Lake  Water  Ins.  Co.,  40  Cal. 
396;  sec  post,  ]K  175,  note  1. 

Exports  may  be  examined  as  to  questions  of  art  or  science  peculiar  to  their 
trade  or  profession,  but  not  as  to  the  construction  of  an  instrument  of  writing: 
Winmis  v.  New  York  &  Erie  R.  R.  Co.,  21  How.  (U.  S.)  88. 

Medical  books  even  of  received  autliority  are  not  competent  evidence  :  Ash- 
worth  V.  Kittridge,  12  Cush.  193  ;  Harris  v.  Panama  R.  R.  Co.,  3  Bosw.  7  ; 
Wade  V.  De  Witt,  20  Tex.  398  ;  Washburn  v.  Cuddihy,  8  Gray  430 ;  Merkle  v. 
State,  1  Ala.  Sel.  Cas.  45.  Youatt's  Treatise  on  Horses  is  not  evidence  on  a 
question  of  soundness:  Fmoler  v.  Lewis,  25  Tex.  (Supp.)  380. 


RECORDS.  97 

but  should  be  preserved  by  the  aid  of  written   *memorials,    r^g-T-i 
mutually  agreed  upon  for  the  purpose  of  perpetuating  those 
transactions.     The  law  itself,  therefore,  provides  authentic  memorials 
of  judicial  proceedings,  and  of  many  other  matters  of  a  public  nature, 
by  means  of  its  own  officers  specially  delegated  to  the  trust. "^ 

Of  this  description  are  the  rolls  of  Parliament,  public  registers, 
and  all  records  of  Courts  of  justice  ;  and  as  these  are  made  by  minis- 
ters or  officers  specially  authorized  by  the  law,  for  the  very  purpose 
of  perpetuating  the  facts  which  they  contain,  it  is  to  be  presumed 
that  they  are  true  memorials,  and  they  are  admissible  evidence  of 
those  facts,  though  they  are  not  sanctioned  by  the  ordinary  tests  of 
truth.  And  it  may  further  be  observed,  that  as  these  memorials  re- 
late for  the  most  part  to  matters  of  public  concern  and  notoriety,  the 
application  of  the  ordinary  tests  is  not  so  requisite  as  in  ordinary 
cases.  On  this  principle,  even  books  of  history  are  admissible  to 
prove  public  and  notorious  historical  facts. ^ 

But  though  the  law  in  such  cases  does  not  require  the  aid  of  the 
ordinary  tests  of  truth,  yet  in  these,  as  well  as  in  all  other  instances, 
the  res  inter  alios  acta  is  always  excluded.  Many  of  the  matters 
which  the  law  records  by  instruments  of  its  own  creation  are  of  a 
public  nature,  to  which  all  may  be  considered  privy ;  as  in  the  case  of 
public  proclamations,  acts  of  state,  public  registers  of  births  and  mar- 
riages.    In  the  case  of  judicial  records,  although  in  one  sense  they 

•1  See  tit.  Judgment — Record. 

^  All  evidence  of  this  sort  must  be  considered  as  mere  hearsay ;  and  certainly, 
as  hearsay,  it  is  of  no  very  satisfactory  character.  Historical  facts,  of  general 
and  public  notoriety,  may  indeed  be  proved  by  reputation  ;  and  that  reputation 
may  be  established  by  historical  works  of  known  character  and  accuracy.  But 
evidence  of  this  sort  is  confined  in  a  great  measure  to  ancient  facts,  which  do 
not  presuppose  better  evidence  in  existence  ;  and  where,  from  the  nature  of  the 
transaction,  or  the  remoteness  of  the  period,  or  the  public  and  general  reception 
of  the  facts,  a  just  foundation  is  laid  for  general  confidence.  But  the  work  of  a 
living  author,  who  is  within  the  reach  of  process  of  the  court,  can  hardly  be 
deemed  of  this  nature.  He  may  be  called  as  a  witness.  He  may  be  examined 
as  to  the  sources  and  accuracy  of  his  information  ;  and  especially  if  the  facta 
which  he  relates  are  of  a  recent  date,  and  may  be  fairly  presumed  to  be  within 
the  knowledge  of  many  living  persons,  from  whom  he  has  derived  his  materials  ; 
there  would  seem  to  be  cogent  reasons  to  say,  that  his  book  was  not,  under  such 
circumstances,  the  best  evidence  within  the  reach  of  the  parties  :  Morris  v.  Lessee 
of  Harmer's  Heirs,  7  Pet.  558 — per  Story  J.  The  American  State  Papers  pub- 
lished by  order  of  Congress  are  admissible :  Nixon  v.  Porter,  34  Miss.  697 ; 
Dutillet  v.  Blanchard,  14  La.  Ann.  97 ;  Doe  v.  Boe^  13  Fla.  602.  See  ante,  p. 
49.  note  2. 


97  ARTIFICIAL    EVIDENCE. 

are  of  public  notoriety,  and,  therefore,  although  such  a  record  is 
always  evidence  of  the  mere  fact  that  such  a  cause  was  litigated  and 
such  a  judgment  given,  whenever  the  mere  fact  is  material,  yet  they 
are  not  admissible  evidence  of  the  facts  and  rights  decided  by  the 
decree  or  judgment,  where  they  are  of  a  private  nature,  unless  as 
against  one  who  was  party  or  privy  to  the  proceeding,  nor  usually,  as 
will  be  seen,  even  then,  unless  he  who  offers  the  evidence  AA'as  also  a 
r*qQi  W^^J  or  privy  ;  in  all  *other  cases  the  objection  that  the  affair 
was  res  inter  alios  acta  must  prevail/  ^ 
As  the  law  creates  instruments  for  the  purpose  of  evidence,  so  it 
frequently  annexes  to  them  an  artificial  weight  and  consequence  on 
grounds  of  legal  policy.  Thus  a  record  in  a  judicial  proceeding  is 
in  many  instances  not  simply  admissible  evidence,  but  conclusive  as 
to  the  facts  adjudged.^ ^ 

■■  See  tit.  Judgment. 

'  See  tit.  Judgment — Record. 

^  A  record,  which  cannot  be  used  aj:;ainst  parties  to  a  suit  on  trial,  because 
some  of  them  were  not  parties  to  the  record,  cannot  be  used  for  them  :  Chiles  v. 
Conleij,  2  Dana  21 ;  Hurst  v.  McNeil,  1  AVash.  C.  C.  Rep.  70;  Davis  v.  Wood,  1 
Wheat.  6.  A  judgment,  not  conclusive  against  a  party,  is  not  conclusive  in  his 
favor :  Southgate  v.  Montgomery,  1  Paige  Ch.  R.  4]  ;  Morris  v.  Lucas,  8  Blackf.  9. 

A  statement  in  a  record  of  a  foreign  judgment  that  a  party  appeared  by 
attorney  is  prima  facie  evidence  of  that  fact  and  of  his  authority  :  Capting  v. 
Hernan,  17  Mich.  524.  A  decree  between  the  parties  thereto  is  evidence  of  the 
recitals  therein,  and  when  relied  on  as  a  link  in  a  chain  of  evidence  is  to  be  con- 
sidered as  though  it  were  a  deed :  Doe  v.  Boe,  36  Ga.  66.  The  entire  record  in 
a  former  case  is  admissible  in  evidence  when  the  action  involves  proof  of  the 
judgment  in  that  cause :  Smith  v.  Smith,  22  Iowa  516.  A  part  of  a  record  is 
improperly  admitted  in  evidence  wlien  the  whole  is  not  produced  :  Carrick  v. 
Armstrong,  2  Cald.  265.  The  verdict  of  the  jury  in  another  action  is  not  ad- 
missible to  show  that  the  matter  has  been  decided  :  McReady  v.  Rogers,  1  Neb. 
124.  As  to  judgments  in  the  Confederate  States  during  the  civil  war,  see  Penny- 
wit  V.  Kellogg,  1  Cine.  17  ;  Steere  v.  Tenney,  50  N.  H.  461. 

When  the  judgment  of  a  court  of  law,  or  decree  of  a  court  of  chancery,  forms 
a  link  in  a  chain  of  title,  the  fact  of  the  existence  of  such  judgment  or  decree 
may  be  shown  by  the  record,  in  controversies  with  third  persons  as  well  as  be- 
tween the  parties  :  Den  v.  Hamilton,  7  Ilals.  109  ;  Turpin  v.  Brannon,  3  McCord 
2G1.  Where  the  maker  of  a  note  has  been  prosecuted  to  insolvency,  the  record 
of  the  suit  may  be  given  in  evidence  against  indorsers  where,  by  the  local  law, 
it  is  necessary  to  prove  due  dilligence  in  order  to  charge  them  :  Lane  v.  Clark, 
1  Mo.  057.  A  judgment  between  others  is  evidence  of  the  fact  of  its  having 
been  rendered,  and  competent  when  that  fact  is  material :  Head  v.  McDonald,  7 
Monr.  203;  Ansley  v.  Carlos,  9  Ala.  973  ;  Kitig  v.  Chase,  15  N.  II.  9  ;  Fletcher 
V.  Jackson,  23  Vt.  581  ;  Harrison  v.  Harrison,  39  Ala.  489. 

'  To  make  a  record,  in  a  former  suit,  conclusive  evidence  on  any  point,  it 
should  appear,  from  the  record,  that  such  a  point  was  in  issue.     And  evidence 


PRESUMPTIONS.  98 

It  is,  however,  very  clear,  that  the  previous  verdict  of  a  jury  is  not 
only  inconclusive,  but  that  in  its  own  nature  it  cannot  possibly  be  con- 
clusive as  to  the  truth  of  a  fact  which  it  professes  to  ascertain,  where 
that  fact  is  again  disputed.  It  is  possible  that  the  former  jury  may 
not  have  been  supplied  with  sufficient  evidence  to  enable  them  to  come 
to  a  correct  conclusion,  or  that  they  may  have  fallen  into  error,  or  even 
that  they  may  have  been  swayed  by  indirect  motives.  But  the  law, 
on  a  strong  principle  of  policy  and  convenience,  and  in  order  to  ex- 
clude continual  litigation,  frequently  annexes  an  artificial  conclusive 
effect  to  a  former  verdict. 

almnde  is  not  admissible  to  show  that  a  matter  not  in  issue  on  the  record  was 
taken  into  consideretion  by  the  jury  :  Manny  v.  Harris,  2  Johns.  24.  A  decree 
in  chancery  is  conclusive,  in  a  suit  at  law  between  the  same  p.arties,  of  such 
facts  as  were  directly  in  issue  in  the  bill,  and  which  were  necessary  to  uphold 
it:  Cuit  V.  Tracy,  8  Conn.  2G8  ;  Pleasants  v.  Clements,  2  Leigh  474;  Pierson  v. 
Catlin,  18  Vt.  77.  A  judgment  on  the  merits,  in  a  personal  action,  is  a  bar  to 
another  action  on  the  same  claim  and  between  the  same  parties,  though  the 
forms  of  the  two  actions  be  not  the  same  :  Lawrence  v.  Vernon,  3  Sumn.  20.  A 
verdict,  in  an  action  of  detinue,  against  the  plaintiflf",  on  the  plea  of  non  detinet, 
is  not  sufficient  evidence  in  another  suit  to  show  that  the  plaintiif  had  not  title 
to  the  thing  demanded.  If,  in  such  case,  parol  evidence  can  be  introduced  to 
show  the  grounds  on  which  the  verdict  was  given,  this  evidence  must  prove  con- 
clusively that  the  jury  could  have  found  their  verdict  upon  no  other  ground  than 
want  of  title  in  the  plaintiff:  Long  v.  Bangas,  2  Ired.  290.  In  an  action  of  tres- 
pass quare  clausum  fregit,  the  defendant  pleaded  the  general  issue,  and  filed  a 
notice  that  he  claimed  and  should  give  evidence  of  title  to  the  locus  in  quo.  The 
jury  found  the  defendant  guilty,  assessed  damages,  and  also  found  that  the  de- 
fendant had  no  title  to  the  land  described  in  the  plaintiff's  declaration  ;  and 
judgment  was  rendered  for  the  plaintiff.  It  was  held  that  this  judgment  was 
not  conclusive  proof  of  the  plaintiff's  right  of  property  in  said  land,  nor  of  his 
title  to  maintain  a  writ  of  entry  to  recover  the  land  from  the  defendant  in  that 
action :  Wade  v.  Lindsay,  6  Mete.  407.  See  Darlington  v.  Gray,  5  Whart.  487  ; 
Piper  V.  Richardson,  9  Mete.  155  ;  Dukes  v.  Broughton,  2  Speers  620.  In  cove- 
nant for  instalments  of  money,  a  former  recovery  between  the  same  parties,  on 
the  same  instrument,  is  not  a  bar  where  breaches  for  the  instalments  demanded 
in  the  latter  action  were  not  specifically  assigned  in  the  former  suit ;  and  evidence 
is  admissible  to  show  that  the  instalments  now  demanded  had  not  fallen  due, 
and  were  not  included  in  the  former  recovery.  It  would  be  otherwise  where  the 
former  claim  was  entire  and  for  a  sum  of  money  in  solido :  Sterner  v.  Gower,  3 
W.  &  S.  136.  Upon  the  general  subject  of  the  conclusiveness  of  judgments,  see 
Gates  V.  Goreham,  5  Vt.  317  ;  Shafer  v.  Stonebreaker,  4  Gill  &  Johns.  345  ;  Gard- 
ner V.  Buckbee,  3  Cow.  120 ;  Ribshaum  v.  Didlebum,  4  Watts  183  ;  Eobinson  v. 
Croivninshield,  1  N.  H.  76 ;  Livermore  v.  Herschell,  3  Pick.  33  ;  White  v.  Phil- 
brick,  5  Greenl.  147  ;  Boynton  v.  Willard,  10  Pick.  166  ;  Marsh  v.  Pier,  4  Rawle 
273  ;  Burnham  v.  Webster,  1  Woodb.  &  Min.  172 ;  Pinney  v.  Barnes,  17  Conn. 
420. 


98  ARTIFICIAL    EVIDENCE. 

Again,  where  formal  instruments  are  prescribed  or  adopted  by  con- 
vention, for  the  purpose  of  manifesting  and  perpetuating  the  acts  and 
transactions  of  private  individuals,  the  law  interferes  not  only  in  pre- 
scribing the  manner  and  form,  but  also  in  giving  an  artificial  effect  to 
such  instruments. 

The  ordinary  instances  in  which  the  law  prescribes  the  form  and 
manner  in  which  private  persons  shall  express  their  acts  and  inten- 
tions, and  record  their  engagements,  are,  in  cases  of  wills  of  real 
property,  grants  of  incorporeal  rights,  which  must  be  evidenced  by  a 
specialty,  and  agreements,  which  in  many  instances  prescribed  by  the 
Statute  of  Frauds'  must  be  evidenced  by  some  written  memorandum 
of  the  transaction.  In  these  and  other  instances  where  the  law  pre- 
r^QQ-i  scribes  the  form,  the  evidences  of  the  fact  *must  of  course  con- 
sist in  proof  that  the  legal  requisites  have  been  complied  with 
in  the  particular  instance. 

The  admissibility  of  such  conventional  means  of  perpetuating  the 
transactions  between  individuals,  falls  for  the  most  part  within  the 
ordinary  and  natural  rules  of  evidence.  They  are,  in  effect,  formal 
admissions  by  the  parties  who  make  them,  and  as  against  themselves 
are  therefore  admissible.  The  admission  of  such  evidence  is  quite 
consistent  with  the  general  rule  which  excludes  all  that  is  res  inter 
alios  acta  ;  such  evidence  ■would  therefore  be  admissible  independently 
of  any  artificial  rule  of  law,  but  when  admitted,  the  law  frequently 
annexes  an  artificial  efficacy  which  such  evidence  would  not  otherwise 
possess." 

The  law  not  only  in  many  instances  prescribes  the  manner  and  form 
of  the  instrument  by  which  such  acts  and  intentions  shall  be  signified, 
but  frequently  annexes  an  artificial  and  arbitrary  effect  to  the  evi- 
dence. Thus  the  law  provides  that  a  specialty,  such  as  a  bond,  shall 
carry  with  it  intrinsic  and  conclusive  evidence  that  it  was  founded  on 
a  good  and  sufficient  consideration,  without  any  other  proof;  that  a 
bill  of  exchange  shall  afford,  not  conclusive,  hnt  prima  facie  evidence 
of  consideration  ;  whilst  in  other  cases  of  mere  parol  engagements  a 
consideration  will  not  be  presumed,  but  to  give  them  effect  must  usually 
be  alleged  and  proved. 

The  doctrine  of  estoppels  by  deed  affords  another  prominent 
instance  of  the  law's  interference  to  annex  an  artificial  effect  to  par- 
ticular evidence.  It  is  a  general  rule  of  law  that  a  man  shall  be 
estopped  or  excluded  from  the  averment  or  proof  of  that  which  is 

*  See  tit.  Frauds,  Statute  of. 

"  See  tit.  Bond — Deed — Bill  of  Exchange. 


ESTOPPEL.  99 

contrary  to  his  admission  by  deed ;"  ^  but  he  is  not  estopped  in  the 
strict  legal  *sense  of  the  term  by  a  mere  oral  admission,  r^-iAn-i 
or  even  a  written  one  not  under  seal.  Independently  of  an 
artificial  rule,  there  is  no  reason  why  a  man  should  be  estopped  or 
excluded  from  asserting  the  truth  in  one  case  and  not  in  the  other. 
So  also  there  are  numerous  instances  where,  on  a  just  and  equitable 
principle,  the  courts  hold  a  man  to  be  concluded  by  his  own  conduct 
and  representation  of  a  fact,  although  contrary  to  the  truth.  Thus 
where  a  person  assents  to  an  act  and  derives  and  enjoys  a  title  under 
it  he  cannot  impeach  it,^  and  so  if  a  man  induces  a  tradesman  to 
supply  a  woman  with  goods  by  a  representation  that  she  is  his  wife, 

'  See  tit.  Deed.     Botwer  v.  Wilkinson,  5  B.  &  Aid.  (7  E.  C.  L.  R.)  GS2. 

The  rule  that  a  party  is  estopped  by  his  deed,  does  not  preclude  a  party  from 
asserting  that  the  transaction  was  contrary  to  law,  or  void  on  the  ground  of 
fraud,  and  for  this  purpose  giving  evidence  to  contradict  the  statements  contained 
in  the  deed  ;  Fairtiile,  ex  dem.  Mytton,  v.  Gilbert,  2  T.  R.  169  ;  Collins  v.  Blantern, 
2  Wils.  341 ;  1  Smith's  Lead.  Cas.  154,  et  notce ;  Doe  dem.  Chandler  v.  Ford,  3 
Ad.  &  E.  (30  E.  C.  L.  R.)  649  ;  Doe  dem.  Williams  v.  Lloyd,  5  Ring.  N.  C.  (35  E. 
C.  L.  R.)  741  ;  Hai/ne  v.  Maltby,  3  T.  R.  438  ;  Chanter  v.  Leese,  4  M.  &  W.  295. 

y  Rex  V.  Stacy,  1  T.  R.  4.  Where  a  copyholder  has  been  admitted  to  a  tene- 
ment, and  done  fealty  to  a  lord  of  a  manor,  he  is  estopped,  in  an  action  by  the 
lord  for  a  forfeiture,  from  showing  that  the  legal  estate  was  not  in  the  lord  at  the 
time  of  admittance:  Doe  dem.  Nepean  v.  Bedden,  5  B.  &  Aid.  (7  E.  C.  L.  R.) 
626. 

1  Stoiv  v.  Wyse,  7  Conn.  214 ;  Wilkinson  v.  Scott,  17  Mass.  249  ;  McDonald  v. 
King,  Coxe  432.  One  who  conveys  land  without  having  a  title,  is  estopped  from 
claiming  it,  if  he  after  acquires  a  title  :  Mc  Williams  v.  Nisly,  2  S.  &  R.  507; 
Brown  v.  McCormick,  6  AVatts  60;  Somes  v.  Skinner,  3  Pick.  52.  One  holding 
a  vested  interest  and  a  contingent  interest  in  land,  and  conveying  by  deed  with 
warranty  "his  right,  title  and  interest"  therein,  passes  his  vested  interest  only 
by  the  deed,  and  is  not  estopped  thereby  to  claim  his  contingent  interest  when 
it  becomes  vested:  Blanchard  v.  Brooks,  12  Pick.  47.  The  guardian  of  a  person 
non  compos,  sold  certain  real  estate  belonging  to  his  ward  under  a  license  of 
court,  and  conveyed  the  same  with  a  covenant  that  he  was  duly  authorized  to 
sell  the  granted  premises  ;  it  was  held  that  the  guardian  was  estopped  by  such 
covenant,  from  setting  up  a  claim  to  any  portion  of  such  real  estate,  under  a 
previous  conveyance  to  him  in  his  own  right :  Heard  v.  Hall,  16  Pick.  457  ;  but 
see  Comsiock  v.  Smith,  13  Pick.  116;  Allen  v.  Sayward,  5  Greenl.  227.  The 
estoppel  in  general  extends  to  all  the  facts  recited  in  the  deed, — but  an  excep- 
tion has  been  allowed  as  to  the  recital  of  the  amount  of  consideration  and  the 
fact  of  its  payment;  Wilkinson  v.  Scott,  17  Mass.  249;  Davenport  v.  Mason,  15 
Mass.  85  ;  Schillinger  v.  McCann,  6  Greenl.  364  ;  Buffum  v.  Green,  5  N.  H.  71 ; 
Taggart  v.  Stanherry,  2  M'Lean  543  ;  Korris  v.  Norris,  9  Dana  317  ;  Dyer  v. 
Rich,  1  Mete.  180. 


100  ARTIFICIAL    EVIDENCE. 

he  will  be  concluded  bj  that  representation,  and  will  not  afterwards  be 
admitted  to  show  that  she  was  not  his  wife/^ 

In  the  next  place,  the  law  interferes  by  annexing  to  particular 
classes  of  evidence  artificial  presumptions,  as  contradistinguished 
from  the  natural  inferences  and  presumptions  which  a  jury  would 
have  made  by  virtue  of  their  own  knowledge  and  experience.  Such 
presumptions  are  not  rules  for  arriving  at  the  simple  truth ;  on  the 
contrary,  they  are  frequently  used  for  the  very  purpose  of  excluding 
the  truth  on  grounds  of  special  legal  policy.  Their  object  is  to  annex 
particular  consequences  to  certain  defined  predicaments ;  in  fact, 
therefore,  they  are  in  their  operation  mere  rules  of  law.^ 

Such  artificial  presumptions  are  of  two  kinds ;  first,  those 
r*10n  *^^'l^ich  are  made  by  the  law,  that  is,  by  the  courts  which  ad- 
minister the  law,  without  the  aid  of  a  jury ;  secondly,  such 
as  cannot  be  made  but  by  the  aid  of  a  jury.  The  former  again  con- 
sist of  conclusive  presumptions,  which,  like  the  presumptions,  juris  et 
de  jure  of  the  civil  law,  admit  of  no  proof  to  the  contrary,  or  are 
simply  prcesumptiones  juris,  which  may  be  rebutted  in  fact,  or  by 

^  See  Vol.  II.,  tit.  Admissions,  and  with  respect  to  this  principle  see  further 
Pickard  v.  Sears,  6  Ad.  &  E.  (33  E.  C.  L.  R.)  469  ;  Freeman  v.  Cooke,  2  Exch. 
654. 

^  Chapman  v.  Searle,  3  Pick.  35 ;  Rice  v.  Bixler,  1  W.  &  S.  445 ;  Crockett  v. 
Lashhrook,  5  Monr.  530.  Declaring  a  note  to  be  "frood"  to  one  about  to  pur- 
chase it,  or  standing  by  in  silence  when  it  is  transferred  for  consideration,  is 
an  estoppel  in  pais  against  a  debtor  :  Watson  v.  McLaren,  19  Wend.  557  ;  Petrie 
V.  Feeter,  21  Wend.  172  ;  Davis  v.  Thomas,  5  Leigh.  1.  A  pei-son  is  always 
estopped  from  denying  the  truth  of  a  fact,  upon  the  faith  of  which  he  has 
suflfered  another  person  to  act,  knowing  at  the  time  that  the  other's  conduct  was 
materially  influenced  by  a  reliance  upon  the  truth  of  such  fact :  Hicks  v.  Cram, 
17Vt.  449;  Banky.  Wollaston,  ^  Harring.  90;  Rangeley  v.  Spring.  5  Shepl. 
130.  If  a  party  having  knowledge  that  he  has  a  title  to  property  stands  by  and 
sees  another  mortgage  it  to  a  third  person,  to  secure  a  debt  or  liability  incurred 
at  the  time,  without  giving  notice  of  his  title,  he  is  estopped  from  setting  it  up 
afterwards  in  a  suit  at  law  against  the  mortgagee:  Thompson  \.  Sanborn,  11 
N.  H.  201.  If  A,  having  title  to  land,  stiyids  by  and  encourages  a  sale  to  B,  he 
is  estopped,  however,  only  when  he  conceals  an  outstanding  title  not  equally 
known  to  both  parties :  Parker  v.  Barker,  2  Mete.  423 ;  see  McKelvy  v.  Truhy,  4 
W.  &  S.  323. 

^  Not  only  convenience,  but  necessity  calls  for  a  definite  rule  to  produce  cer- 
tainty of  result  in  the  determination  of  facts  which  must  be  passed  upon  with- 
out proof;  and  such  can  only  be  o])tained  from  the  doctrine  of  presumption, 
which,  however  arbitrary,  is  indispensable,  and  when  founded  in  the  ordinary 
course  of  events,  productive  of  results  which  usually  accord  with  the  truth:  Per 
Gibson,  C.  J.,  Burr  v.  Sims,  4  Whart.  170.  G. 


ESTOrPELS.  101 

some  other  presumption  raised  by  the  facts.  Thus  a  deed  under  seal, 
where  the  execution  of  the  instrument  stands  unimpeached,  affords 
conclusive  evidence  of  consideration.* 

But  although  the  law  will  presume  or  intend,  on  proof  of  a  fine, 
that  it  was  levied  with  proclamations,  or  that  the  heir-at-law  of  one 
who  died  seised  of  an  estate  was  in  possession  of  that  estate,  yet  these 
are  but  prima  facie  presumptions  which  may  be  repelled  by  actual 
proof  to  the  contrary. 

Other  presumptions,  again,  which  may  be  termed  presumptions  in 
law  and  fact,  are  those  which  are  recognised  and  Avarranted  by  law 
as  the  proper  inferences  to  be  made  by  juries  under  particular  cir- 
cumstances ;  these,  it  will  be  seen,  are  founded  on  principles  of 
policy  and  convenience,  and  not  unfrequently  on  an  analogy  to  ex- 
press rules  of  law.  Thus,  a  jury  would  have  been  warranted  in  pre- 
suming, and  even  directed  to  presume  a  right,  from  evidence  of  an 
adverse  and  uninterrupted  enjoyment  of  lands  for  twenty  years,  in 
analogy  to  the  provisions  of  stat.  21  Jac.  I.,  c.  16  ;  although,  if  the 
jury  did  not  infer  the  right  from  such  evidence,  the  court  could  not 
have  done  it. 

*  Vol.  II.,  tit.  Presumptions. 


PART  II. 

OF  THE  INSTRUMENTS  OF  EVIDENCE. 


Having  thus  considered  generally  the  principles  which  regulate 
the  admission  of  evidence,  we  are  next  to  consider  what  are  the 
means  and  instruments  of  evidence ;  how  are  they  to  be  procured  and 
used  ;  their  admissibility  and  effect.  These  are,  first,  oral  witnesses, 
examined  vivd  voce  in  court  as  to  facts  within  their  own  knowledge, 
and  in  some  particular  instances,  as  to  what  they  have  heard ;  and, 
secondly,  written  evidence. 


CHAPTER  I. 
ORAL  EVIDENCE. 


And  first,  as  to  oral  witnesses.  Oral  testimony,  it  is  to  be  re- 
marked, in  natural  order  precedes  written  evidence.  It  is  in  general 
more  proximate  to  the  fact  than  written  evidence,  being  a  direct 
communication  by  one  who  possesses  actual  knowledge  of  the  fact  by 
his  senses ;  Avhilst  written  evidence  in  itself  requires  proof,  and 
must  ultimately  be  derived  from  the  same  source  with  oral  evidence, 
that  is,  from  those  who  possessed  actual  knowledge  of  the  facts. 
Under  this  head  may  be  considered, 

1st.  The  mode  of  enforcing  the  attendance  of  a  witness  in  civil 
and   criminal   cases,    and   his   production    of  writings  in 
his  possession.     The  incidents  to  his  attendance  and  de- 
fault. 
*2dly.  Objections  in  exclusion  of  his  testimony. 
L       '^■^  3dly.  The  mode  of  examination  in  chief;  cross-exami- 

nation, and  re-examination. 
4thly.   The  mode  of  rebutting  his  testimony. 
5thly.   The  mode  of  confirming  his  testimony. 


ORAL    EVIDENCE.  103 

I.  The  mode  of  enforcing  the  attendance  of  a  witness  in  civil  and 
criminal  cases,  and  also  of  enforcing  his  production  of  ivritings  in 
his  possession,  and  the  incidents  to  his  attendance  or  default. 

His  attendance  upon  the  trial  is  enforced  by  subpoena  or  habeas 
corpus,  in  civil  as  well  as  in  criminal  cases,  and  also  in  the  latter  by 
means  of  his  recognizance. 

The  attendance  of  a  witness  in  civil  cases  is  compelled  (where  the 
witness  is  notin  custody)  by  means  of  a  subpoena,  which  is  a  judicial 
writ,  commanding  the  witness  to  appear  at  the  trial  to  testify  for  the 
plaintiff  or  defendant,  under  pain  of  forfeiting  ,£100  in  case  of  dis- 
obedience.'^  It  is,  however,  requisite,  in  civil  cases,  to  tender  to  the 
witness  his  reasonable  expenses,  not  only  of  going  to  attend  the  trial, 
but  also  of  his  return  ;  for  though  he  may  refuse  to  be  sworn  till  such 
expenses  be  paid,  the  party  may  not  choose  to  call  him,  and  he  may 
find  it  difficult  to  get  home  again. ** 

If  a  witness  wilfully  neglect  to  attend  upon  the  subpoena,  he  is . 
guilty  of  a  contempt  of  court,  for  which  he  is  liable  to  an  attachment.*^ 
He  is  also  liable  to  darhages  at  common  law,  in  an  action  on  the  case 
by  the  party  injured  ;'^  *and  lastly,  by  the  stat.  5  Eliz.  c.  r:iciAi-| 
9,  s.  12,  he  shall  forfeit  for  such  offence  £10,  and  yield  such 
further  recompense  to  the  party  grieved  as,  by  the  discretion  of  the 
court  out  of  which  the  process  shall  issue,  shall  be  awarded. '^  The 
most  usual  mode  of  proceeding  is  by  attachment,  in  which  case  an 
affidavit  of  personal  service  is  necessary,  and  of  the  payment  or  ten- 
der of  reasonable  expenses.^ 

Where  the  witness  is  in  custody,  his  testimony  is  obtained  by 
means  of  a  habeas  corpus  ad  testifica7idum,  which  was  grantable  at 
the  discretion  of  the  courts  at  common  law  :^  and  by  the  stat.  44 
Geo.  III.,  c.  102,  any  judge  of  the  superior  courts,  in  England  or 

*  See  the  form,  Tidd's  Forms  283.  For  practice  as  to  the  form,  service  and 
remedies  for  disobedience  of  a  subpoena,  and  also  the  tender  of  expenses  to  wit- 
nesses, see  Vol.  III.,  tit.  Witness. 

»>  Chapman  v.  Pointon,  2  Str.  1150 ;  Fuller  v.  Prentice,  1  II.  B.  9  ;  Ilallett  v. 
Mears,  13  East  15  ;  Ex  parte  Roscoe,  1  Meriv.  189.  The  obligation  depends  on 
the  stat.  5  Eliz.  c.  9. 

<=  1  Str.  510;  2  Str.  810,  1054,  1150 ;  Cowp.  3SG  ;  Doug.  561. 

^  Doug.  561  ;  Needham  v.  Fraser,  1  C.  B.  (50  E.  C.  L.  R.)  815. 

*  Cro.  Car.  522,  540 ;  Goodwin  v.  West,  Jon.  430 ;  5  Mod.  355. 

f  Chapman  v.  Pointon,  2  Str.  1150;  Garden  y.  Cresswell,  2  M.  &  W.  319 -, 
Fuller  V.  Prentice,  1  H.  B.  49  ;  Home  v.  Smith,  6  Taunt.  (1  E.  C.  L.  R.)  9. 

8  See  Tidd's  Prac.  9th  ed.  809 ;  Ex  parte  Tillotson,  1  Stark.  C.  (2  E.  C.  L.  R.) 
470;  and  see  the  form  and  course  of  proceeding,  Vol.  III.,  tit.  Witness. 


104  ORAL    EVIDENCE. 

Ireland,  may  award  a  writ  or  writs  of  habeas  corpus  for  bringing  up 
an  J  prisoner  or  prisoners  detained  in  ani/  gaol  or  prison,  before  any 
of  the  said  courts,  or  any  sitting  of  Nisi  Prius,  or  before  any  otber 
court  of  record  in  those  parts  of  the  United  Kingdom,  to  be  examined 
as  a  witness  in  any  cause  or  matter,  civil  or  criminal,  depending  or  to 
be  inquired  into  or  determined  in  any  of  those  courts.''  ^  And  every 
justice  of  the  county  palatine  of  Chester  has  by  the  same  statute, 
similar  authority  within  the  limits  of  his  jurisdiction. 
P^-|Qr-i  A  lunatic  fit  for  examination,  and  not  dangerous,  may  ""'also 
be  brought  up  from  a  lunatic  asylum  by  virtue  of  this  writ.' 
So  where  the  witness  is  under  the  duress  of  some  third  person,  as  a 
sailor  on  board  a  man-of-war,  his  attendance  is  procured  by  the  same 
means.J 

The  attendance  of  a  witness  in  criminal  cases  may  be  compelled 
by  means  of  a  suhpoeyia  issued  in  the  queen's  name  by  the  justices  of 
the  court  in  which  the  ofience  is  to  be  tried  ;^  but  the  more  usual 
course  in  all  cases  of  treason,  felony,  indictable  misdemeanor,  or  any 
indictable  offence  is  for  the  justices  who  take  the  informations, 
examinations  and  depositions,  to  bind  the  witnesses  under  the  statute 
11  &  12  Vict.  c.  42,  ss.  16  and  20,  by  recognizance,  to  appear  at 
the  next  Court  of  Oyer  and  Terminer  or  Gaol  Delivery,  or  Quarter 
Sessions,  or  other  court  at  which  the  accused  is  to  be  tried,  to  give 
evidence.^  In  cases  of  murder  and  manslaughter,  the  coroner,  upon 
any  inquisition  taken  before  him,  is  empowered  by  7  Geo.  IV.  c.  64, 
s.  4,  to  bind  the  witness  by  recognizance  to  appear  and  give  evi- 
dence on  the  trial. 

Where  an  offender  who  has  escaped  from  one  part  of  the  United 

''  Previous  to  this  statute  it  was  the  usual  practice  for  the  courts  to  award  this 
writ  upon  motion,  accompanied  with  a  proper  affidavit.  By  the  stat.  43  Geo.  III. 
c.  140,  ajudjie  of  any  of  the  courts  at  Westminster  may  at  his  discretion  award 
a  writ  o^  habeas  corpus  for  bringing  a  prisoner  detained  in  any  goal  in  England 
before  a  court  martial,  or  before  commissioners  of  bankrupts,  commissioners  for 
auditing  jiublic  accounts,  or  other  commissioners  acting  by  virtue  of  any  royal 
commission  or  warrant. 

'  Faindl  V.  Tail,  1  C,  M.  &  R.  584. 

J  Rex  V.  Jioddum,  Cowp.  072. 

"  Ji.  V.  Jiiu!j,  8  T.  11.  585. 

'  See  2  lluss.  on  Crimes,  3d  ed.  945  ;  20  IIovv.  St.  Tr.  355  ;  and  sec  Howard 
V.  Gossctt,  10  Q.  B.  (59  E.  C.  L.  R.)  43G ;  2  Ilaw.  c.  46,  s.  165. 

'  A  sheriff  is  bound  to  bring  up  a  person  in  execution  on  a  civil  suit,  on  a 
habeas  corpus  ad  tcstijicandum,  on  being  tendered  tlie  expenses  of  bringing  him 
u|)  and  talking  iiim  back  :  Nublc  v.  Smith,  5  Johns.  357.  G. 


WITNESS — PROCESS.  105 

Kingdom  is  tried  in  anotlier,  by  virtue  of  the  stat.  45  Geo.  III.  c.  92, 
s.  3,"  service  of  a  subpoena  on  a  witness  in  one  part  of  the  United 
Kingdom  to  give  evidence  in  a  criminal  prosecution  in  another  part, 
is  as  effectual  as  if  the  witness  had  been  served  with  the  subpoena  in 
that  part  of  the  United  Kingdom  where  he  is  required  to  appear, 
and  upon  default  notified  by  a  certificate  under  the  seal  of  the  court 
Avhence  the  subjurna  issued,  to  the  Court  of  King's  Bench  in  England 
or  Ireland  respectively,  or  the  High  Court  *of  Justiciary  in  r+iAA-i 
Scotland,  he  is  liable  to  be  punished  as  for  a  contempt  of  the 
process  of  those  courts  respectively.  By  the  express  provision  of 
this  statute  (sect.  4)  the  witness  cannot  be  punished  for  default, 
unless  the  reasonable  expenses  of  coming  and  attending  to  give  evi- 
dence, and  of  returning,  have  been  tendered  to  him.°""  In  other 
cases  the  witness  is  bound  to  obey  the  writ,  or  to  perform  the  condi- 
tion of  his  recognizance,  although  no  expenses  have  been  tendered  to 
him;"  for  the  calls  of  justice  are  paramount  to  all  private  considera- 
tions and  claims."  In  case  of  ^  felony  and  some  cases  ofi  misde- 
meanor, the  legislature  has  made  provision  for  the  expenses  of  the 
prosecution  and  witnesses. 

At  common  law,  a  defendant  in  capital  cases  had  no  means  of 
compelling  the  attendance  of  witnesses  on  his  behalf  without  a 
special  order  from  the  court ;  and  if  they  attended  voluntarily, 
they  could  not  be  sworn. ''^     But  in  case  of  misdemeanor  a  defend- 

™  And  see  13  Geo.  III.  c.  39,  and  44  Geo.  III.  c.  92.  The  latter  statute  is  re- 
pealed so  far  as  relates  to  the  apprehension  of  offenders  escaping  from  Ireland 
into  England,  or  from  England  into  Ireland,  and  to  the  backing  of  warrants 
against  them,  by  11  &  12  Vict.  c.  42,  s.  21. 

"""  The  provision  is  confined  to  cases  where  the  witness  making  default  is  out 
of  the  jurisdiction  of  the  Court  from  which  the  certificate  is  transmitted:  E.  v. 
Broumcll,  1  Ad.  &  Ell.  (28  E.  C.  L.  R.)  602;  and  it  does  not  apply  to  a  subpoena 
from  the  quarter  sessions.     lb. 

"  2  Russ.  on  Crimes,  3d  ed.  947. 

»  2  Haw.  c.  46,  s.  168  ;  2  Hale  292 ;  B.  v.  CooJce,  1  Car.  &  P.  (12  E.  C.  L.  R.) 
321. 

P  7  Geo.  IV.  c.  64,  s.  22 ;  Bex  v.  Exeter  Co.  Treas.,  5  M.  &  Ry.  167  ;  and  pro- 
vision is  made  by  6  &  7  Will.  IV.  c.  89,  and  7  AVill.  IV.  &  1  Vict.  c.  68,  for  the 
expenses  of  medical  and  other  witnesses  attending  on  coroner's  inquests ;  see 
the  statutes  on  this  subject  more  fully  noticed,  Vol.  III.,  tit.  Witness. 

1  7  Geo.  IV.  c.  64,  s.  23 ;  and  by  1  Vict.  c.  44,  this  power  is  extended  to  cases 
of  misdemeanor  in  concealing  the  birth  of  a  child. 

'  2  Haw.  c.  46,  s.  165  ;  Bex  v.  Turner,  6  How.  St.  Tr.  565 ;  4  Bl.  Com.  359. 

^  In  Massachusetts,  prisoners  indicted  for  a  capital  offence  are  entitled  to  the 


106  ORAL     EVIDENCE. 

ant  might  always  take  out  suhpoenas  as  of  course.*  Bj  the  stat.  7 
"Will.  III.  c.  3,  s.  7,  it  was  provided  that  defendants,  in  cases  of  trea- 
son, should  have  the  same  process  to  compel  the  attendance  of  wit- 
nesses for  them  as  was  granted  to  compel  witnesses  to  appear  against 
them;  and  ever  since  the  statute  1  Anne,  st.  2,  c.  9,  s.  3,  wliich  pro- 
pyl 07"!  ^^^^^^  ^^^^  witnesses  for  the  prisoners,  *in  cases  of  treason  or 
felony,  shall  he  sworn  in  the  same  manner  as  the  witnesses 
for  the  Crown,  and  be  subject  to  the  same  punishment  for  perjury, 
the  process  by  subpoena  is  allowed  to  defendants  in  cases  of  felony,  as 
well  as  in  other  instances  ;*  and  consequently,  as  the  law  now  stands, 
a  witness  who  should  refuse,  after  being  subpoenaed  to  attend  to  give 
evidence  for  a  defendant  in  a  criminal  case,  would  be  liable  to  an  at- 
tachment for  a  contempt  of  court. 

In  proceedings  before  justices  of  the  peace  at  their  quarter  ses- 
sions, whose  jurisdiction  does  not  extend  beyond  the  county  for 
which  they  act,  in  order  to  procure  the  attendance  of  a  witness 
who  resides  in  another  county  the  process  is  issued  from  the  Crown 
office.' 

Where  magistrates  are  authorized  by  a  statute  to  hear  and  deter- 
mine, or  to  examine  witnesses,  they  have,  incidentally,  authority  to 
summon  witnesses,  and  take  the  examination  on  oath."  And  by  the 
express  provisions  of  stat.  11  &  12  Vict.  c.  42,  when  any  indictable 
offence  has  been  committed  within  the  limits  of  the  jurisdiction  of 
any  justice  of  the  peace,  or  when  any  person  suspected  to  be  within 
his  jurisdiction,  he  may  issue  his  warrant  to  apprehend  such  person, 
and  may  summon  any  person  within  his  jurisdiction  as  a  witness  for 

*  2  Haw.  c.  46,  s.  165. 

*  See  R.  V.  Ring,  8  T.  R.  585 ;  Rex  v.  Brownell,  1  Ad.  &  E.  (28  E.  C.  L.  R.) 
602 ;  see  also  11  &  12  Vict.  c.  42,  s.  ]6. 

"  Lamb  517  ;  Dalton's  J.,  c.  6. 

Commonv.'ealth's  process  to  bring  their  witnesses  into  court  at  the  Common- 
wealth's expense:  Comm.  v.  Williams,  13  Mass.  501.  M. 

And  it  has  always  been  the  practice  in  the  State  Courts  of  Pennsylvania  for  a 
person  accused  to  have  compulsory  process  fi-om  a  magistrate  or  the  court  for 
his  witnesses,  before  indictment  and  he  is  entitled  to  it  in  the  United  States 
Courts  under  the  Eighth  Article  of  the  amendment  to  the  Constitution  of  the 
United  States:  U.  S.v.  i/oore,  Wall.  2P,.  See  also,  Burr's  Trial  178.  Even 
after  a  conviction  the  defendant  is  entitled  to  a  subp(x!na  to  compel  tlie  attend- 
ance of  witnesses  to  prove  extenuating  circumstances  :  State  v.  Smith  ct  al.,  2 
Ray  62.  But  witnesses  for  a  misdemeanor  are  not  bound  to  attend  the  trial 
unless  their  fees  arc  paid  as  in  civil  cases,  but  it  is  otherwise  in  prosecutions 
for  felony  :  7'Jx  parte  Chamberlain,  4  Cow.  49.  I. 


WITNESS — PRODUCTION    OF    DOCUMENTS.  107 

the  prosecution,  or  may,  if  requisite,  by  warrant,  cause  such  person 
to  be  brought  before  him  to  give  evidence  concerning  the  charge ; 
and  if  such  person  refuse  to  give  evidence,  he  may  commit  him  to 
prison/  By  another  statute"^  likewise,  in  all  cases  where  justices  of 
the  peace  are  empowered  to  imprison,  fine,  or  otherwise  punish  upon 
summary  conviction  ;  and  in  all  cases  where  they  are  empowered 
upon  complaint  to  make  any  order  for  payment  of  *moneyor  r:i:-|AQ-i 
otherwise ;  if  it  shall  appear  upon  oath  or  affirmation  that 
any  one  within  the  justices'  jurisdiction  is  likely  to  give  material 
evidence  for  the  prosecutor,  complainant,  or  defendants,  and  will 
not  voluntarily  appear  as  a  witness,  any  such  justice  may  issue  a 
summons  and  afterwards  a  warrant,  or  in  certain  instances  a  warrant 
only,  in  the  same  manner  to  appear  at  the  time  and  place  therein 
mentioned,  and  give  evidence  for  the  witnesses  as  is  provided  by 
11  &  12  Vict.  c.  42,  where  persons  have  committed  indictable 
offences. 

Commissioners  of  bankrupts  may  summon  before  them  any  per- 
sons whom  they  believe  to  be  capable  of  affording  information  con- 
cerning the  trade,  dealings  or  estate  of  the  bankrupt,  and  in  default 
they  may  order  the  party  summoned  to  be  apprehended.  Every  such 
witness  is  entitled  to  have  his  expenses  tendered  him." 

The  Court  for  Relief  of  Insolvent  Debtors  in  England^  has  the 
same  power  for  compelling  the  attendance  of  witnesses  'and  produc- 
tion of  documents  as  the  superior  Courts  at  Westminster.  That 
court  has  also  the  same  powers  as  Commissioners  of  Bankrupts  in 
reference  to  the  attendance  of  witnesses  and  the  production  of  docu- 
ments in  cases  of  insolvency  arising  under  the  statutes  5  &  6  Vict. 
c.  116,  and  7  &  8  Vict.  c.  96,  s.  5,  the  jurisdiction  over  which  was 
transferred  by  the  statute  10  &  11  Vict.  c.  302,  ss.  4,  6  and  8,  to  the 
court  and  the  judges  of  the  County  Courts  in  the  country. 

Either  of  the  parties  to  any  proceeding  under  the  recent  Act* 
establishing  County  Courts,  may  obtain,  at  the  clerk's  offices,  sum- 
monses to  witnesses,  with  or  without  a  clause  requiring  the  production 
of  writings,  which  are  to  be  served  by  one  of  the  bailiffs  of  the  court ; 
and  any  person  so  served,  and  to  whom  his  expenses  are  tendered, 
and  any  person  present  in  court,  who  sball  be  required  to  give  evi- 
dence, shall  pay,  on  default  or  refusal,  a  fine  not  exceeding  £10. 

*Witnesses  also  being  duly  summoned  to  attend  on  Courts    r-^-,  oq-i 
Martial,  are,  by  the  statute   13  Vict.  c.  5,  s.  15,  liable,  on 

Ml  &  12  Vict.  c.  42,  8.  16.  '11  &  12  Vict.  c.  43,  s.  7. 

^  12  &  13  Vict.  c.  106,  s.  120.  ^  1  &  2  Vict.  c.  110,  s.  27. 

'  9  &  10  Vict.  c.  95,  ss.  85,  86. 


109  ORAL     EVIDENCE. 

neglect  to  attend,  or  produce  documents  if  required,  to  attachment 
in  tlie  Court  of  Queen's  Bench,  as  in  case  of  neglect  to  attend  a  trial 
on  a  criminal  proceeding  in  that  court. 

In  the  case  of  a  reference  to  arbitration  by  rule  of  court,  or  bj  a 
judge's  order  or  agreement  to  make  the  submission  a  rule  of  court,  the 
court  making  such  rule  or  order,  or  any  judge,  may  direct  the  at- 
tendance of  a  witness  to  be  examined  before  the  arbitrator,  or  the 
production  of  any  document,  by  the  statute  3  &  4  AVill.  IV.  c.  42, 
s.  40. 

Commissioners  of  inclosure,  and  assistant  commissioners  under  the 
statute,  have  power  to  summon  by  writing  any  person  within  a  certain 
distance  to  appear  before  them  to  be  examined,  or  by  summons  under 
the  seal  of  the  commissioners  to  appear  before  any  valuer ;  and  in 
each  case  to  produce  documents  ;  and  if  the  party  summoned  refuse 
to  appear,  or  to  produce  documents,  having  had  his  reasonable  ex- 
penses tendered,  he  will  be  guilty  of  a  misdemeanor.''  And  similar 
powers  to  require  attendance  of  persons  and  production  of  documents 
are  given  to  the  Tithe  Commissioners  by  summons,  under  hand 
only,  by  6  &  7  Will.  IV.  c.  71,  s.  6."  And  to  the  Poor-Law  Com- 
missioners by  summons  under  hand  and  seal  by  4  &  5  Will.  IV.  c.  76. 

Where  either  party  cannot  safely  proceed  to  trial  on  account  of 
the  absence  of  a  material  witness,  the  proper  course  is  to  move  the 
court  in  term  time,  or  to  apply  to  a  judge  in  vacation,  or  the  judge 
at  the  sittings,  on  a  proper  affidavit,  to  put  off  the  trial,  which  he 
allows  or  not  at  his  discretion." 

*Where  a  witness  is  resident  abroad,  or  is  going  abroad,  the 
J    proper  course  is  to  apply  to  the  court  to  have  him  examined 
out  of  court,  vivd  voce,  or  on  interrogatories.     So,  where  it  is  appre- 
hended that,  from  illness,  a  witness  may  not  be  able  to  attend  the 
trial.'^" 

Where  an  instrument  is  in  the  hands  of  a  third  person,  the  produc- 
tion is  compelled  by  means  of  a  writ  of  subpoena  duces  tecum.'"'     By 

«8  &9  Vict.  c.  118,  Hs.  9,  164. 

»-  See  10&  11  Vict.  c.  104. 

'  Turner  v.  Merri/tveather,  7  C.  B  (02  E.  C.  L.  R.)  251.  But  this  application 
will  not  be  granted  at  the  instance  of  the  plaintiff",  unless  in  the  case  perhaps  of 
a  trial  by  proviso,  because  he  may  withdraw  his  record  ;  but  when,  in  conse- 
quence of  some  sudden  indisposition  or  accident,  a  witness  is  unable  to  attend, 
but  is  likely  to  be  able  to  do  so  })cfore  the  sittings  are  over,  the  judge  will  usually 
make  an  ordcir  that  the  cause  shall  stand  over  :  Analeij  v.  Birch,  3  Camp.  C.  333. 

''''  Infra,  Writtkn  Evidence. — Index,  tit.  Examination  on  Interrogatories. 

*"  From  the  entries  cited  in  the  case  of  Amey  v.  Long,  9  East  473,  it  appears 


AVITNESS — PRODUCTION     OF    DOCUMEXTS.  110 

this  writ  the  witness  is  compelhible  to  produce  all  documents  in  his 
possession,  unless  he  have  a  lawful  or  reasonable  excuse  to  the  con- 
trary.*^ Of  the  validity  of  the  excuse  the  court,  and  not  tlie  witness 
is  to  judge/^  As  every  man,  in  furtherance  of  justice,  is  bound  to 
disclose  all  the  facts  within  his  knowledge  which  do  not  tend  to 
his   crimination,   upon  the  very  same  principle  he  is  *also    ^ 

.  r*iiii 

bound  to  produce  such  documents  as  are  essential  to  the  •-  -• 
discovery  of  truth  and  the  great  ends  of  justice.  But  as  he  is  pro- 
tected from  answering  questions,  the  answers  to  which  may  subject 
him  to  penal  responsibility,  so  he  is  not  compellable  to  produce  any 
document  in  his  possession,  where  the  production  would  be  attended 
with  similar  consequences.^ 

There  is,  however,  in  one  respect,  a  distinction  between  compelling 

that  this  writ  has  in  fact  been  used  from  the  time  of  Charles  the  Second  ;  but 
so  necessary  is  the  power  of  compelling  the  production  of  documents  in  the  pos- 
session of  third  persons,  that  the  means  of  doing  it  must  have  been  coeval  with 
the  courts  of  law. 

The  statutes  11  &  12  Vict.  c.  42,  and  11  &  12  Vict.  c.  43,  do  not  make  any 
provision  for  enforcing  the  production  of  documents,  and  it  has  been  decided 
that  a  summons  of  a  justice  requiring  a  party  possessed  of  documents  to  attend 
as  a  witness  and  produce  them  is  not  equivalent  to  a  siihpvena  duces  tecum  : 
R.  V.  Inhabitants  of  Orton,  7  Q.  B.  (53  E.  C.  L.  R.)  120.  But  on  an  applica- 
tion before  magistrates  at  petty  sessions,  a  subpoena  ad  testificandum,  and  a 
subpoena  duces  tecum,  may  issue  from  the  Crown  ofiBce,  and  disobedience  will  be 
punished  by  Q.  B.  with  attachment:  R.  v.  Greemcay,  7  Q.  B.  (53  E.  C.  L.  R.) 
156;  R.  V.  Carey,  Ibid.  131.  The  Court  of  Bankruptcy  may  require  any  person 
summoned  before  them  to  give  information  concerning  the  bankrupt  and  his 
dealings,  to  produce  any  documents  in  his  custody  or  power  which  the  Court 
may  think  necessary  :  12  ct  13  Vict.  c.  106,  s.  120.  The  powers  of  the  Insolvent 
Court,  of  the  County  Courts,  and  of  Arbitrators,  Commissioners  of  Inclosure, 
Tithe  and  Poor-Law  Commissioners  to  procure  the  production  of  documents 
have  already  been  mentioned,  ante,  pp.  108,  109. 

^  Ameij  V.  Long,  9  East  473. 

*  Amey  v.  Long,  9  East  473  ;  Field  v.  Beaumont,  1  Swans.  209. 

^  See  Whittaker  v.  Izod,  2  Tant.  115 ;  and  The  King  v.  Nixon,  3  Burr.  1G87. 

^  A  witness  may  be  compelled,  under  a  suhpcena  duces  tecum  to  produce  a 
document  in  his  possession,  unless  he  has  a  laAvful  or  reasonable  excuse  for 
withholding  it,  although  the  production  of  it  will  adversely  affect  his  pecuniary 
interest:  Bull  v.  Loveland,  10  Pick.  9.  The  court  and  not  the  witness  is  to 
judge  of  the  reasonableness  of  his  excuse:  Ibid.  Chaplain  v.  Briscoe,  5  S.  &  M. 
198.  A  subpoena  duces  tecum  was  served  on  a  witness,  who  attended  but  did 
not  produce  on  the  trial  the  papers  specified,  nor  show  a  good  reason  why  he 
did  not.  Held,  that  he  was  liable  to  the  aggrieved  party  for  all  the  damages 
sustainedin  consequence  of  his  disobedience:  Lane  v.  Cole,  12  Barb.  680.  And 
see  0' Toole's  Estate,  1  Tuck.  39. 


Ill  ORAL     EVIDENCE. 

a  witness  to  answer  a  question  orally,  and  obliging  liim  to  produce 
a  written  document..  He  must  answer  questions,  althougli  the  answer 
may  render  him  civilly  responsible ;  but  he  is  not  compellable  to  pro- 
duce title-deeds,  or  any  other  documents  which  belong  to  him,  where 
the  production  might  prejudice  his  civil  rights.^  And  this  is,  as  it 
seems,  a  rule  of  legal  policy  founded  upon  a  consideration  of  the  great 
inconvenience  and  mischief  to  individuals  which  misht  and  would  re- 
suit  to  them  from  compelling  them  to  disclose  their  titles,  by  the  pro- 
duction of  their  title-deeds  or  other  private  documents.  But  this  rule 
does  not  extend  beyond  the  evidences  of  title.^ 

The  same  principle  applies  where  the  document  is  in  the  hands  of 

s  Doe  dem.  Earl  of  Egremont  v.  Date,  3  Q.  B.  (43  E.  C.  L.  R.)  609.  This 
case  arose  on  the  trial  of  an  ejectment  by  a  party  claiming  the  reversion  against 
a  lessee.  The  plaintiif  to  prove  seisin  in  G.,  a  late  tenant  for  life,  called  his 
executor,  and  required  him  to  produce  a  book  containing  an  entry  forty  years 
old  of  a  receipt  of  rent  for  the  land  in  question  by  (?.'s  steward.  It  was 
admitted  that  the  executor,  as  legatee  of  large  personal  property  under  the  will 
of  the  tenant  for  life,  would  be  liable  over  to  the  defendant  if  the  plaintiff 
obtained  a  verdict  under  G.'s  covenant  for  title,  and  that  the  action  was  sub- 
stantially defended  by  the  executor.  But  it  was  held  that  the  executor  was 
bound  to  produce  the  book.  Though  the  person  declining  to  produce  the  docu- 
ment cannot  be  compelled  to  state  the  contents,  yet  he  must  disclose  the  date, 
and  the  names  of  the  parties  in  order  to  identify  it :  Doe  dem.  Loscomhe  v.  Clif- 
ford, 2  C.  &  K.  (61  E.  C.  L.  R.)  448. 

'  The  subpfena  duces  tecum  is  not  a  process  of  course  ;  thus  it  will  not  be 
issued  to  a  public  officer  to  bring  original  papers  into  court,  when  certified 
copies  would  be  evidence  :  Delany  v.  Regulators,  1  Yeates  403.  Nor  to  the 
printer  of  a  newspaper  to  produce  certain  of  his  newspapers  in  court  :  Shippen 
V.  Wells,  2  Yeates  260.  And  it  seems  that  the  Governor  of  the  State  cannot  be 
compelled  to  produce  a  communication  sent  to  him  respecting  the  character  of  a 
public  officer :  Gray  v.  Pentland,  2  S.  &  R.  23.  So  a  cashier  of  a  bank  is  not 
bound  to  produce  the  books  of  the  bank  on  this  writ,  in  a  case  where  the  bank 
is  a  party:  Utica  Bank  v.  Ililliard,  5  Cow.  153,  419.  Semhle,  a  witness  cannot 
thus  be  compelled  to  produce  a  paper  which  would  criminate  himself:  U.  S.  v. 
Reyhurn,  6  Pet.  367.  A  witness  may  however  be  compelled,  under  a  suhjxKua 
duces  tecum,  to  produce  a  document  in  his  possession,  unless  he  has  a  lawful  or 
reasonable  excuse  for  withholding  it,  although  the  production  of  it  will  ad- 
versely affect  his  pecuniary  interest ;  of  tlie  lawfulness  or  reasonableness  of  such 
excuse,  the  court  and  not  the  witness  is  to  judge  :  Bull  v.  Loveland,  10  Pick.  9. 

A  security  in  a  sherifl"'s  bond  was  compelled  to  produce  the  books  of  his 
principal  (who  had  died  insolvent)  on  a  suhpama  duces  tecum,  notwithstanding 
ho  was  apprehensive  of  danger  to  himself  from  the  production  in  the  way  of  suits 
upon  tlie  bond  :  Hawkins  v.  Sumpter,4  Dess.  446.  But  this  suhpxxna  cannot  be 
issued  to  tlie  attorney  of  the  party  whose  cause  is  on  trial  and  received  the 
papers  conlideiitially  in  that  character  :  Diirkce  v.  Leland,  4  Vt.  612.  G. 


WITNESS — PRODUCTION    OF     DOCUMENTS.  112 

an  attorney:  he  will  not  be  compelled  to  *produce  it  to  ho 
read  Avhere  the  disclosure  would  be  prejudicial  to  his  client,''  ^  "-' 
and  when  he  is  protected  from  producing  it,  he  cannot  be  forced  to 
divulge  its  contents.'  But  the  latter  privilege  is  confined  to  an 
attorney  or  his  representative,  and.  therefore,  although  an  agent, 
not  being  an  attorney,  or  his  clerk,  may  not  be  compellable  to  pro- 
duce the  deeds  of  his  principal,  (a  party  in  the  cause,)  yet  he  is 
liable,  on  declining  to  produce  them,  to  be  examined  as  to  their 
contents.''^ 

Where  these  objections  do  not  apply,  it  seems  that  the  writings  in 
a  man's  possession  are  as  much  liable  to  the  calls  of  justice  as  the 
faculties  of  speech  and  memory  are.  There  can  be  no  difference  in 
principle  between  obliging  a  man  to  state  his  knowledge  of  a  fact,  and 
compelling  him  to  produce  a  written  entry  in  his  possession  which 
proves  the  same  fact.  Not  only  a  man's  estate,  but  even  his  liberty 
or  life  may  depend  upon  written  evidence,  which  is  the  exclusive  pro- 
perty of  a  stranger.  If  the  Court  think,  that  upon  principles  of  jus- 
tice and  equity,  the  production  ought  not  to  be  enforced,  secondary 
evidence  may  be  given. 

It  is  in  all  cases  the  duty  of  the  witness  to  bring  the  document 
with  him,  according  to  the  exigency  of  the  writ  ;^  and  it  is  a  ques- 
tion of  law  for  the  court,  wdiether,  upon  principles  of  justice  and 
equity,  the  production  of  the  instrument  ought  to  be  enforced.™ 
Disobedience  of  the  writ  by  the  witness  will  not  warrant  the  recep- 
tion of  *parol  evidence ;  but  where  the  witness  in  fraud  of 

r*ii3i 

the  subpoena,  had  transferred   the    document  to  the  adverse    ^         J 

''  Copeland  v.  Watts,  1  Stark.  C.  (2  E.  C.  L.  R.)  95.  See  further  on  this  sub- 
ject, Vol.  II.,  tit.  Confidential  Communication  ;  R.  v.  Woodley,  1  M.  &  Rob. 
390;  B.  V.  Boddington,  8  D.  &  R.  (16  E.  C.  L.  R.)  726. 

'  Davies  v.  Waters,  9  M.  &  W.  608  ;  Hibbard  v.  Kniglii,  2  Exch.  11 ;  Newton 
V.  Chaplin,  19  L.  J.,  N.  S.,  C.  P.  374 

"  Earl  of  Falmouth  v.  Moss,  11  Pri.  455. 

1  Amey  v.  Long,  9  East  473  ;  Corsen  v.  Dubois,  1  Holfs  C.  (3  E.  C.  L.  R.)  239  ; 
Field  V.  Beaumont,  1  Swanst.  209;  Reed  v.  James,  1  Stark.  C.  (2  E.  C.  L.  R.) 
132. 

"  Copeland  v.  Watts,  1  Stark.  C.  (2  E.  C.  L.  R.)  95 ;  Corsen  v.  Dubois,  1 
Holt  C.  (3  E.  C.  L.  R.)  239  ;  Reed  v.  James,  1  Stark.  C.  (2  E.  C.  L.  R.)  132. 

^  Jackson  v.  Bustis,  14  Johns.  391 ;  Lynde  v.  Judd,  3  Day  499  ;  Durkee  v. 
Leland,  4  Vt.  612.  He  may  prove  the  existence  of  such  papers  and  that  they 
are  in  his  possession,  so  as  to  enable  the  party  to  give  secondary  evidence  of 
their  contents  :  Rhoads  v.  Selin,  4  Wash.  C.  C.  718  ;  Brundt  v.  Klein,  17  Johns. 
335  ;  Jackson  v.  Mc  Vey,  18  Johns.  330.  See  McPherson  v.  Rathbone,  7  Wend. 
216. 


113  ORAL     EVIDENCE. 

party  in  the  cause,  it  was  held  that  parol  evidence  was  admissible." 
Of  course  it  is  not  admissible  when  the  subpoena  was  served  too  late." 

Where  the  instrument  is  in  the  hands  of  the  adverse  party  timely 
notice  should  be  given  to  produce  it.P 

As  a  witness  is  bound  to  attend  in  court  in  obedience  to  the  writ, 
so  is  he  under  an  obligation  to  be  sworn  and  give  evidence  on  his 
appearance.  And  if  a  witness  for  the  Crown  refuse  to  be  sworn,  he 
is  guilty  of  a  contempt  of  court,  and  may  be  fined,  and  committed 
till  he  has  paid  the  fine.''  A  person  who  happens  to  be  in  court, 
may,  in  a  criminal  case,  be  compelled  to  give  evidence,  although  he 
has  not  been  bound  by  recognizance,  or  served  with  a  subjjoena  as  a 
witness.' 

The  law  protects  a  witness,  as  well  as  a  party  to  the  suit,  from 
arrest,  eundo  morando  et  redeundo.^^  And.it  is  not  essential  to  his 
protection  that  the  witness  should  have  been  subpoenaed,  if  he  has 
consented  to  attend.'  The  courts  usually  allow  ample  time  for  this 
purpose  "  The  same  indulgence  has  been  extended  to  a  witness  at- 
r*114.1  tending  an  arbitrator  under  an  order  of  Nisi  Prius  ;^  and  *to 
a  petitioning  creditor,""  a  bankrupt,   or  witness  attending  a 

"  Leeds  v.  Cook  et  nx.,  4  Esp.  C.  250. 

"  Hibberd  v.  Knight,  2  Ex.  11. 

P  Doe  d.  Wartney  v.  Gray,  1  Stark  C.  (2  E.  C.  L.  R.)  283. 

•J  Lord  Preston'' s  case,  Salk.  278.  Lord  Preston  was  committed  by  the  Court 
of  Quarter  Sessions  for  refusing  to  be  sworn  before  the  grand  jury  on  an  indict- 
ment for  high  treason.  But  a  witness  may  refuse  to  be  sworn  in  a  civil  case  if 
hisexpenses  have  not  been  paid. 

^R.  v.  Sadler,  4  C.  &  P.  (19  E.  C.  L.  R.)  118. 

^  Meekins  v.  Smith,  1  H.  B.  636;  Lightfoot  v.  Cameron,  2  Bl.  1113  ;  Eandall 
V.  Gurney,  3  B.  &  A.  (23  E.  C.  L.  R.)  252. 

'  Spence  v.  Stuart,  3  East  89  ;  Kinder  v.  Williams,  4  T.  R.  377  ;  Arding  v. 
Flower,  8  T.  R.  534 ;  Ex  parte  Byne,  1  Ves.  &  B.  316  ;  Meekins  v.  Smith,  1  H. 
B.  636. 

"  13  East  16  11.  (a)  ;  Willingham  v.  Matthews,  6  Taunt.  (1  E.  C.  L.  R.)  356 
Lightfoot  V.  Catneron,  cited  in  2  Bl.  1113;  Hatch  v.  BUsset,  Gilh.  Cas.  308 
cited  in  Jlolliday  v.  Pitt,  2  Str.  986;  Strong  y.  Dickenson,  1  M.  &  W.  488 
Eandall  v.  Gurney,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  252. 

*  Spence  v.  Stuart,  3  East  89;  Moore  v.  Booth,  3  Ves.  350;  Randall  v.  Gurney, 
3  B.  &  Aid.  (5  E.  C.  L.  R.)  252 ;  Rishton  v.  Nisbett,  1  M.  &  Rob.  347  ;  Webb  v. 
Taylor,  1  Dow.  &  L.  676. 

""  Selby  v.  Hills,  1  Dowl.  P.  C.  257. 

'  If  a  witness  privileged   from  arrest  1)8  nevertheless  arrested,  and  do  not 

in.sist  on  his  privilego,  but  give   a  bond   for  the   prison-bounds,   such   bond   is 

neither  void  nor  voidable — the  privilege  is  waived:  Tipton  y.  Harris,  Peck. 
414.  G. 


OBJECTIONS    IN    EXCLUSION    OF     WITNESSES.  114 

meeting  of  commissioners ;""  a  witness  attending  the  execution  of  a 
writ  of  inquiry,""  the  Insolvent  Debtors'  Court,"  and  a  Court  Martial 
under  the  Mutiny  Act.^ 

But  a  witness  is  not  protected  from  being  taken  by  his  baiV  for 
this  is  not  an  arrest,''  but  a  retaking ;  and  he  may  also  bo  arrested  on 
criminal  process. 

II.    Objections  in  exclusion  of  the  testimony  of  tvitnesses. 

It  has  already  been  seen  that  a  witnesss  may  be  incompetent, 
because  he  is  incapable  of  religious  obligation  from  youth,  mental  in- 
firmity,'^ ignorance,  or  unbelief. 

^  Spence  v.  Stuart,  3  East  89  ;  Arding  v.  Flower,  8  T.  R.  534 ;  Kinder  v.  Wil- 
liams, 4  T.  R.  377 ;  Ex  parte  Bijne,  1  Ves.  &  B.  316. 
^  Walters  v.  Rees,  4  Moore  (16  E.  C.  L.  R.)  34. 
='  WilUngham  v.  Matfheivs,  6  Taunt.  (1  E.  C.  L.  R.)  356. 
yEx  jiarte  Lgne,  3  Stark.  C.  (3  E.  C.  L.  R.)  132. 

^  Per  Richards,  C.  B.,  Horn  v.  Swinford,  1  D.  &  R.  (16  E.  C.  L.  R.)  20. 
*  One  who  is  born  deaf  and  dumb  may,  if  he  have  sufficient  understanding,  give 

^  And  to  a  witness  attending  before  a  magistrate  to  give  his  depositions  under 
a  rule  of  court :   U.  S.  v.  Edm(;,  9  S.  &  R.  147.  I. 

The  privilege  of  a  vritness  does  not  extend  throughout  the  term  at  which  the 
case  is  marked  for  trial  ;  nor  is  he  protected  while  engaged  in  transacting  his 
private  business,  after  he  is  discharged  from  the  obligation  of  his  subpoena : 
Smytlie  v.  Banks,  4  Dall.  329.  But  he  is  protected  while  at  his  lodgings,  as 
well  as  while  going  to  or  returning  from  court:  Hursfs  case,  4  Dall.  487.  And 
a  witness  from  another  State  is  entitled  to  the  same  privilege  as  a  citizen  of  the 
State  where  the  court  sits  :  Koi'ris  v.  Beach,  2  Johns.  294 ;  Sandford  v.  Chase, 
3  Cow.  3S1.  It  was  held  by  Washington,  J.,  in  the  Circuit  Court  of  the  United 
States  for  the  third  circuit  in  New -Jersey,  that  the  privilege  of  a  witness  extends 
only  to  an  exemption  from  arrest,  and  does  not  render  illegal  the  service  of  a 
summons  upon  him,  unless  he  be  in  the  immediate  presence  of  the  court: 
Blighfs  Ex.  v.  Fisher  et  al.,  1  Pet.  41.  The  contrary,  however,  has  been  held 
by  the  Supreme  Court  of  New  Jersey :  Balsey  v.  Sterrard,  1  South.  366.  The 
protection  which  the  law  gives  to  a  witness  is  a  personal  privilege,  of  which  he 
may  avail  himself  to  prevent  or  defeat  an  arrest ;  but  if  he  waive  the  privilege 
and  willingly  submit  to  custody,  he  cannot  afterwards  object  to  the  imprison- 
ment as  unlawful:  Brotvn  v.  Gitchell,  11  Mass.  11.  A  writ  of  protection  is 
often  sued  out  for  a  witness ;  but  it  is  of  no  use  except  to  give  notice  to  the 
officer — being  no  protection  to  one  who  is  not  legally  entitled  to  it :  Ex  parte 
McNeil,  6  Mass.  264.  The  common  remedy  when  a  witness  or  party  is  arrested, 
while  ftojia  j^(?e  attending  to  a  cause  which  requires  his  attendance,  is  by  motion 
to  the  court  to  be  discharged  from  custody.  But  in  New  Yoi'k,  he  will  not  be 
discharged  without  notice  to  the  plaintiff.  A  rule  to  show  cause,  however,  will 
be  granted  and  proceedings  stayed  in  the  mean  time:  Graver  v.  Green,  1  Caines 
115.  M. 


114  OBJECTIONS     IN    EXCLUSION     OF    WITNESSES. 

The  objection  arising  from  the  ignorance  or  unbelief  of  the  wit- 
ness, ought,  in  its  natural  course,  to  be  taken  before  the  witness  is 
sworn,  because  it  assumes  that  he  is  incapable  of  being  bound  by  an 
oath.  Indeed  any  objection  to  competency  ought  to  be  taken  in  the 
first  instance,  and  before  the  witness  has  been  examined  in  chief;  for 
otherwise  it  would  afford  an  unfair  advantage  to  the  other  party,  who 
would  avail  himself  of  the  testimony  of  the  witness,  if  it  were  favora- 
ble, but  would  *get  rid  of  it  by  raising  the  objection,  if  it 
L  -I  turned  out  to  be  adverse.  And  therefore,  where,  upon  a  trial 
for  high  treason,  it  appeared,  after  a  witness  had  been  examined  with- 
out objection  on  the  part  of  the  prisoner,  that  he  had  been  misde- 
scribed  in  the  list  of  witnesses,  which  is  required  by  the  statute  to  be 
given  to  the  prisoner  previous  to  his  trial,  the  court  would  not  permit 
the  evidence  of  that  witness  to  be  struck  out.''  And  so  when  the  in- 
competency of  a  witness  appeared  on  the  face  of  his  answers  to  inter- 
rogatories, it  was  held  that  the  objection  was  waived  by  putting  cross 
interrogatories,  and  could  not  be  insisted  on  at  the  trial."  It  has, 
however,  been  held,  that  if  it  be  discovered  at  any  stage  of  the  trial 
that  a  witness  is  so  interested  as  to  be  incompetent,  his  evidence  may 
be  struck  out  f  but  this,  it  seems,  is  to  be  understood  of  those  cases 
only  where  the  objection  could  not  have  been  taken  in  the  first  in- 
stance.*^    The  practice  formerly  was  when  an  objection  was  made  to 

evidence  by  means  of  an  interpreter :  R.  v.  Enston,  1  Leach  C.  C.  408 ;  or  by 
writing  if  able :  Morrisonv.  Lennard,  3  C.  &  P.  (14  E.  C.  L.  R.)  127.  Lunatics 
are  competent  during  lucid  intervals.  Com.  Dig.,  tit.  Testmoigne,  A.  1.  And  a 
person  suspected  to  be  insane  may  be  examined  on  the  voire  dire  to  show  his 
state  of  mind  :  see  Att.-Gen.  v.  Hitchcock,  1  Ex.  95. 

»  R.  V.  Watson,  2  Stark.  C.  (3  E.  C.  L.  R.)  158. 

"  Ogle  V.  PalesJd,  Holt  C.  (3  E.  C.  L.  R.)  485. 

*  Turner  v.  Pearie,  1  T.  R.  720 ;  Howell  v.  Lock,  2  Camp.  14 ;  Perigal  v. 
Nicholson,  1  Weightw.  64;  Beeching  v.  Goicer,  Holt's  C.  (3  E.  C.  L.  R.)  313; 
Stoney.  Blackburn,  1  Esp.  C.  37;  Morish  v.  Footc,  2  Moore  (4  E.  C.  L.  R.)  508 ; 
8  Taunt.  (4  E.  C.  L.  R.)  454  ;  Ja-cohs  v.  Layhourn,  11  M.  &  W.  685. 

«  Morish  v.  Fooie,  2  Moore  (4  E.  C.  L.  R.)  508 ;  8  Taunt.  (4  E.  C.  L.  R.)  454; 
Felingham  v.  Sparrow,  9  Dowl.  P.  C.  141  ;  but  see  Jacobs  v.  Layhourn,  contra. 

'  A  witness  incompetent  by  reason  of  interest  must  be  objected  to  before  he 
is  sworn,  if  such  interest  is  known  then  to  the  ol)jcctor  :  Donelson  v.  Taylor,  8 
Pick.  390  ;  Stuart  v.  Lake,  33  Me.  87.  If  in  the  course  of  a  witness'  examina- 
tion, however,  he  appears  from  his  own  answers  to  be  incompetent,  the  party 
aj^ainst  whom  the  evidence  is  given  should  move  to  strike  out  the  testimony : 
Sims  v.  Givan,  2  Blackf.  461  ;  Heely  v.  Barnes,  4  Dcnio  73 ;  Scott  v.  Jester,  8 
Engl.  4:57  ;  Morton  v.  Beall,  2  liar.  &  OiU  136  ;  Lester  v.  McDowell,  6  liar.  91. 
Ill  cliaiici-ry  wli<;n  a  [larty  has  cross-examined  the  witness,  and  no  cxcei)tion  to 


TIME     OF     OBJECTING.  115 

the  competency  of  a  witness,  to  make  it  before  he  was  sworn  in  chief, 
and  to  swear  and  examine  him,  where  his  incompetency  was  sup- 
posed to  arise  from  interest,  on  the  voire  dire  ;  and  after  a  witness 
had  been  examined  in  chief,  the  objection  could  no  longer  be  taken/ 
But  the  same  strictness  is  not  observed  in  modern  practice :  at  least 
with  respect  to  objections  to  witnesses  on  the  ground  of  interest.^ 

Before  a  witness  takes  the  oath,  lie  may  be  asked  whether 
*he  believes  in  the  existence  of  a   God,  in   the  obligation  of 

.  r*ii6i 

an  oath,  and  in  a  future  state  of  rewards  and  punishments;  ^  -' 
and  if  he  does,  he  may  be  admitted  to  give  evidence.'  And  it  seems 
that  he  ought  to  be  admitted  if  he  believes  in  the  existence  of  a 
God  who  Avill  reward  or  punish  him  in  this  world,  although  he  does 
not  believe  in  a  future  state. "^ '  But  it  is  not  sufficient  that  he  believes 
himself  bound  to  speak  the  truth,  merely  for  a  regard  to  character, 
or  the  interests  of  society,  or  fear  of  punishment  by  the  temporal 
law.^ 

The  most  correct  and  proper  time  for  asking  a  witness  whether 
the  form  in  which  the  oath  is  about  to  be  administered  to  him  is  one 
that  will  be  binding  on  his  conscience,  is  before  that  oath  is  adminis- 

^  Lord  Lovafs  case,  10  How.  St.  Tr.  506. 

s  Turner  v.  Pearte,  1  T.  R.  720;  Jacobs  v.  Layhourn,  11  M.  &  W.  685 ;  Yardleij 
V.  Arnold,  10  M.  &  W.  141  ;  and  see  further  on  this  topic,  liost. 

'  i?.  V.  Tuijlor,  Peake's  N.  P.  R.  11.  A  ne^ro  called  as  a  witness  stated, 
before  he  was  sworn,  that  he  was  a  Christian,  and  had  been  baptized  ;  and  it 
was  held  that  he  ought  to  be  sworn,  and  aslied  no  furtlier  questions  before  he 
took  the  oath  :  R.  v.  Serm,  2  C.  &  K.  (61  E.  C.  L.  R.)  53. 

''See  the  judgment  of  Willes,  C.  J.,  in  Omichund  v.  Barker,  Willes  550;  1 
Atk.  21 ;  1  Wils.  84. 

'  R.  V.  Ruston,  Leach  C.  C.  L.  455. 

his  testimony  is  made  until  the  hearing  of  the  cause,  the  objection  will  be  con- 
sidered as  waived:  Barroivy.  Rhinelander,  1  Johns.  Ch.  550;  Town  v,  Needham, 
3  Paige  Ch.  546. 

^  The  weight  of  authority  in  the  United  States  is  very  decidedly  with  the  text 
on  this  point.  If,  however,  any  sanction  bo  required  beyond  the  temporal 
penalties  aifixed  to  the  crime  of  perjury — very  inadequate  if  we  consider  that 
the  oath  of  the  witness  can  only  be  met  in  a  criminal  proceeding  by  the  oaths 
of  two  witnesses,  or  what  is  equivalent  thereto — those  which  may  be  observed 
to  follow  such  crimes  in  this  world  will  hardly  be  sufficient  to  overbear  any 
strong  temptation  to  commit  them.  That  the  belief  must  be  in  a  future  state 
are  the  cases  of  Aiwood  v.  Welton,  7  Conn.  66  ;  Comm.  v.  Bachelor,  4  Am. 
Jurist  81.  Contra,  Hanscom  v.  Hunscorii,  15  Mass.  184;  Farnandis  v.  Hender- 
son, S.  Car.  L.  J.  202  ;  Noble  v.  People,  Breese  29  ;  Blocker  v.  Burness,  2  Ala. 
354;  Brock  v.  Millifjan,  10  Ohio  121 ;  U.  S.  v.  Kennedy,  3  McLean  175;  Blair  v. 
Seaver,  2  Cas.  274 ;  Bennett  v.  State,  1  Swan.  411.     See  ante,  p.  29,  note  1. 


116  OBJECTIONS     IN    EXCLUSION     OF    WITNESSES. 

tered.  But  altliough  a  witness  shall  have  taken  the  oath  in  the  usual 
form  without  making  any  objection,  he  may,  nevertheless,  be  after- 
wards asked  whether  he  considers  the  oath  he  has  taken  to  be  binding 
on  his  conscience.  But  if  the  witness  answer  in  the  affirmative,  that 
he  does  consider  the  oath  which  he  has  taken  to  be  binding  upon  his 
conscience,  he  cannot  then  be  further  asked  whether  there  be  any 
any  other  mode  of  swearing  that  would  be  more  binding  upon  his 
conscience  than  that  which  has  been  used."" 

r*l17"I  "'■^^  criminal  cases,  where  a  person  of  tender  years  is  a  ma- 
terial witness,  it  is  usual  for  the  court  to  examine  the  witness 
as  to  his  competency  to  take  an  oath  before  he  goes  before  the  grand 
jury.  And  if  such  a  witness  be  found  incompetent  for  want  of  proper 
instruction,  the  court  will  in  its  discretion,  put  off  the  trial,  in  order 
that  the  party  may  in  the  mean  time  receive  such  instruction  as  will 
qualify  him  to  take  an  oath.  Neither  the  testimony  of  the  child  with- 
out oath,  nor  evidence  of  any  statement  which  he  has  made  to  any 
other  person,  is  admissible."^ 

"  The  Queen's  case,  2  B.  &  B.  (0  E.  C.  L.  R.)  284.  According  to  the  opinion 
of  the  judges,  as  delivered  by  Abbott,  C.  J.,  in  answer  to  questions  proposed  by 
the  Lords :  Abbott,  C.  J.,  after  delivering  this  opinion,  added,  "  Speaking  for 
myself  (not  meaning  thereby  to  pledge  the  other  judges,  though  I  believe  their 
sentiments  concur  with  .my  own),  I  conceive,  that  if  a  witness  says  he  considers 
the  oath  as  binding  upon  his  conscience,  he  does  in  eifect  affirm,  that  in  taking 
that  oath  he  has  called  God  to  witness  that  what  he  shall  say  will  be  the  truth, 
and  that  he  has  imprecated  the  Divine  vengeance  upon  his  head  if  what  he  shall 
afterwards  say  is  false ;  and  having  done  that,  it  is  perfectly  unnecessary  and 
irrelevant  to  ask  any  further  questions."  And  see  Sells  v.  Hoare,  7  Moore  (17 
E.  C.  L.  R.)  36 ;  3  B.  &  B.  (7  E.  C.  L.  R.)  232. 

"  Brazier's  case,  Leach,  C.  C.  L.  237  ;  R.  v.  Tticker,  1  Phill.  on  Ev.,  9th  ed.  6  ; 
B.  V.  Nicholas,  2  C.  &  K.  (61  E.  C.  L.  R.)  46  ;  per  Pollock,  C.  B. :  "Where  the 
infirmity  arises  from  no  neglect,  but  from  the  child  being  too  young  to  have 
been  taught,  I  doubt  whether  the  loss  in  point  of  memory  would  not  more  than 
countervail  the  gain  in  point  of  religious  education.  Still  I  can  easily  conceive 
that  there  may  be  cases  where  the  intellect  of  the  child  is  much  more  ripened, 
as  in  cases  of  children  of  nine,  ten,  or  twelve  years  old,  when  their  education 
has  been  so  utterly  neglected  that  they  arc  wholly  ignorant  on  religious  subjects. 
In  these  cases  a  postponement  may  be  very  proper."  In  this  case  the  child  was 
six  years  old,  and  postponement  was  refused.  And  where  before  the  happening 
of  the  facts  to  be  proved  by  the  child,  there  had  been  an  absence  of  all  religious 
education,  and  the  child  had  only  been  instructed  with  a  view  to  being  ex- 
amined, but  at  the  trial  showed  no  real  understanding  on  the  subject  of  religion 
or  a  future  state,  the  judge  refused  to  allow  him  to  be  examined  :  li.  v.  Williams, 
7  Car.  &  P.  (32  E.  C.  L.  R.)  320;  R.  v.  Piire,  3  Car.  &  P.  (14  E.  C.  L.  R.)  598. 

'  A  deaf  and  dumb  person  capable  of  relating  facts  correctly  by  signs,  may 
give  evidence  by  signs  through  the  medium  of  an  interpreter,  tliough  it  appear 


AVANT    OF     llELIGIOUS    BELIEF — INFANCY.  117 

It  has  already  been  observed  tliat,  until  recently,  if  a  person  had 
been  convicted  of  an  offence  which  is  inconsistent  with  the  common 
principles  of  honesty  and  humanity,  the  law  considered  his  oath  to 
be  of  no  weight,  and  excluded  his  testimony  as  of  too  doubtful  and 
suspicious  a  nature  to  be  admitted  in  a  court  of  justice,  to  affect  the 
property  or  liberty  of  others.  It  has,  however,  been  thought  by  the 
legislature  that  the  inquiry  after  truth  in  courts  of  justice  was  often 
obstructed   by   these   incapacities,  and  that  it  is    ^desirable 

r*ii8n 

that  full  information  as  to  the  facts  in  issue  should  be  laid  *-  -^ 
before  the  persons  who  are  appointed  to  decide  upon  them  ;  and  that 
they  should  exercise  their  judgment  on  the  credit  of  the  witnesses 
adduced  on  the  truth  of  their  testimony."  It  has,  therefore,  been  en- 
actedP  that  "  no  person  offered  as  a  witness  shall  hereafter  be  ex- 
cluded, by  reason  of  incapacity  from  crime,  from  giving  evidence 
either  in  person  or  by  deposition,  but  that  every  person  so  offered 
may  and  shall  be  admitted  to  give  evidence  on  oath,  or  solemn  affirm- 
ation in  those  cases  wherein  affirmation  is  by  law  receivable,  notwith- 
standing that  such  person  offered  as  a  witness  may  have  been 
previously  convicted  of  any  crime  or  offence."  The  law  upon  the 
subject  of  the  objection  to  competency  on  the  ground  of  infamy  has 
thus  been  rendered  obsolete,  and,  save  as  a  matter  of  historical  in- 
formation, useless.^ 

°  See  recital  6  &  7  Vict.  c.  85. 
p  6  &  7  Vict.  c.  85. 


that  such  person  can  read  and  write,  and  communicate  ideas  imperfectly  by 
writing :  State  v.  De  Wolf,  8  Conn.  93. — G.  See  Snyder  v.  Native,  5  Blackf. 
295.  Whether  a  witness  is  intoxicated  at  the  time  of  giving  testimony  and 
therefore  incompetent  is  a  matter  within  the  sound  discretion  of  the  court: 
Gould  V.  Crawford,  2  Barr  89.  As  to  the  competency  of  witnesses,  see  Anoii., 
2  Penn.  930 ;  Van  Pelt  v.  Van  Felt,  Ibid.  657  ;  Den  v.  Vancleve,  2  South.  589 ; 
State  V.  Leblanc,  Const.  Rep.  (S.  C.)  354  ;  Comm^th  v.  Hutchinson,  10  Mass.  225. 
'  It  is  the  crime  and  not  the  punishment  which  creates  the  infamy  and  de- 
stroys the  competency  of  the  witness:  People  v.  Whipple,  9  Cow.  707.  A  con- 
viction without  an  attainder  is  not  enough:  Shinner  v.  Perot,  1  Ashm.  57.  See 
also  Cashman  v.  Loiter,  2  Mass.  R.  108.  But  conviction  of  an  infamous  crime 
in  a  foreign  country,  or  in  any  other  of  the  United  States,  does  not  render  the 
subject  of  such  conviction  an  incompetent  witness  in  the  courts  of  Massachu- 
setts:  CommHh  v.  Green,  17  Mass.  R.  515.  Nor  in  Maryland:  Cole  v.  Cole,  1 
liar.  &  .Johns.  572 ;  Clark  v.  Hall,  2  liar.  &  McIIen.  378  ;  State  v.  Ridyehj,  lb. 
120.  Nor  in  North  Carolina:  State  v.  Chandler,  3  Hawks.  393.  But  the  record 
is  admissible  in  Massachusetts  to  affect  his  credit:  Comni'th  v.  Knapp,  9  Pick. 
497.  Parol  evidence  of  the  conviction  is  inadmissible  in  New  York  to  establish 
the  incompetency,  although  it  be  proved  that  the  clerk's  office  of  the  county  had 


118  OBJECTIONS     IN     EXCLUSION     OF    WITNESSES. 

The  general  principle  which  operated  to  the  exclusion  of  an 
interested  witness  has  already  been  noticed.  In  order  to  obtain  a 
correct  understanding  of  the  present  law  upon  this  subject,  it  is 
necessary  to  advert  to  the  old  rule,  and  to  trace  its  gradual  restric- 
tion, until  it  has  been  reduced  to  the  few  exceptions  contained  in  the 
reccTit  statute. 

The  old  rule  upon  this  subject  was,  that  the  interest  must  be  some*! 

1  See  Bent  v.  Bakes,  3  T.  R.  27  ;  2  Smith  L.  C.  39  ;  R.  v.  Whiting,  1  Salk. 
283  ;  R.  V.  Boston,  4  East  572;  R.  T.  Hardw.  572  ;  Hamphreys  v.  Miller,  4  Car. 
&  P.  (19  E.  C.  L.  R.)  7 ;  R.  v.  Walker,  1  Ford.  MSS.  145  ;  Parker  v.  Whitbrj,  1 
Turn.  &  R.  362  ;  Giles  v.  Smith,  1  Moo.  &  R.  443  ;  Wishaw  v.  Barnes,  1  Camp. 
341  ;  Smith  v.  Harris,  2  Stark.  C.  (3  E.  C,  L.  R.)  47  ;  De  Rone  v.  Fairlie,  1  Moo. 
&  R.  457  ;  Doe  v.  Clarke,  3  Ring.  N.  S.  (32  E.  C.  L.  R.)  429  ;  R.  v.  Cole,  1  Esp. 
C.  169;  Powell  v.  Gordon,  2  Esp.  C.  735  ;  Forrester  v.  Pigou,  1  M.  &  S.  (28  L.  C. 
L.  R.)  9 ;  Fotheringham  v.  Greenwood.  1  Str.  129;  Salk.  283 ;  Lord  Raym.  724  ; 
Champion  v.  Atkinson,  3  Keb.  90  ;  Company  of  Gold  and  Silver  Wiredrawers  v. 
Hammond,  Ford's  MSS. :  R.  v.  Braij,  R.  T.  Hardw.  360 ;  1  T.  R.  300  ;  3  T.  R. 
32 ;  Co.  Litt.  6  ;  1  Keb.  836  ;  Bent  v.  Baker,  2  T.  R.  27  ;  Smith  v.  Prager,  7  T.  R. 
60 ;  Abrahams  v.  Bunn,  4  Burr.  2251  ;  and  see  Masters  v.  Drayton,  2  T.  R.  490  ; 
Carter  v.  Pearce,  1  T.  R.  163  ;  R.  v.  Boston,  4  East  572;  Needham  v.  Law,  12 
M.  &  W.  560. 


been  burnt  down  and  the  record  probably  destroyed ;  for  there  is  higher  evi- 
dence of  the  fact  capable  of  being  produced,  that  is,  the  transcript  delivered 
into  the  Court  of  Exchequer  by  the  District  Attorney,  which  must  be  presumed 
to  have  been  delivered  according  to  his  duty :  Hilts  v.  Calvin,  14  Johns.  R.  182. 
So  it  is  in  general  inadmissible  in  Massachusetts  :  Comm.  v.  Green,  17  Mass.  R. 
515.  Even  the  admission  of  a  witness  will  not  suflBce  to  prove  the  alleged  in- 
famy, without  the  record  of  the  judgment  as  well  as  the  conviction  :  People  v. 
Whipple,  9  Cow.  707.  But  parol  evidence  to  this  point  is  held  to  be  admissible 
in  Louisiana  :  Castcllano  v.  Peillon,  2  Martin,  N.  S.  466.  And  Maryland  :  Cole 
V.  Cole;  Clarke  v.  Hall ;  State  v.  Ridgely,  supra.  G. 

In  New  Hampshire  a  conviction  of  a  crime  in  another  State  is  not  admissible 
in  evidence  for  the  purpose  of  impeaching  the  credit  of  a  witness.  But  a  con- 
viction in  another  State  of  a  crime  which,  by  the  laws  of  such  State,  disqualifies 
the  party  from  being  heard  as  a  witness,  and  which,  if  committed  in  New 
Hampshire,  would  have  operated  as  a  disqualification  is  sufficient  to  exclude 
liim  from  testifying  there,  in  the  same  manner  as  if  it  had  been  committed  and 
the  conviction  had  taken  place  in  their  jurisdiction  :  Chase  v.  Blodgeit,  10  N. 
n.  22.     See  Uhl  v.  Comm.,  6  Grattan  706  ;  Campbell  v.  State,  23  Ala.  44. 

As  to  what  crimes  are  infamous  see  State  v.  Keyes,  8  Vt.  57  ;  Koller  v.  Firth, 
2  Penn.  723  ;  Comm.  v.  Rogers,  7  Mete.  500 ;  Comm.  v.  Keith,  8  Mete.  531  ;  Car- 
penter v.  Nixon,  5  Hill  260  ;  Free  v.  State,  1  McMull.  494;  Deer  v.  State,  14  Mo. 
348  ;  Comm.  v.  Dane,  8  Ciish.  384  ;  Hoiightaling  v.  Kelderhouse,  1  Parker,  C.  R. 
241  ;  Poage  v.  State,  3  Ohio  (N.  S.)  229  ;  Lyford  v.  Farran,  11  Fos.  314;  State 
V.  [Randolph,  24  Conn.  363.     See  ante,  p.  22,  note  1. 


INFAMY — INTEREST.  119 

lejial,  certain,  and  immediate  interest,  *however  minute,  in    ^ 

.  r  ii9n 

the  result  of  the  cause,  or  in  the  record  as  an  instrument  of   "-         -' 
evidence,  acquired  without  fraud. ^ 

Where  actual  gain  or  loss  would  result,  simply  and  immediately 
from  the  verdict  and  judgment,  the  witness  was  deemed  incompetent 
by  reason  of  his  interest ;  as,  Avhere  he  was  a  party,  though  but  a 
nominal  party,  to  the  suit  f  or  was  a  party  in  beneficial  interest  ;^  or 
quasi  a  party,  from  having  entered  into  a  rule  of  court  or  contract 
that  another  cause,  to  which  he  was  a  party,  should  abide  the  same 
result  with  that  in  which  he  proposed  to  give  evidence ;'  and,  indeed, 
wherever  the  direct  effect  of  the  executed  judgment,  as  contradis- 
tinguished from  its  efficacy  in  establishing  or  evidencing  any  other 
right  or  claim,  or  for  any  other  collateral  purpose,  would  be 
to  produce  *some  benefit,  or  work  some  prejudice  to  the  pro- 
posed witness." 


[*120] 


*■  As  in  the  case  of  guardian  of  a  minor,  or  governor  of  the  poor,  who  is  in  the 
first  instance  liable  to  costs  :  H.  v.  St.  Mary  Magdalen,  3  East  5.  Trustees 
empowered  as  a  public  body  to  sue  and  to  be  sued  in  the  name  of  their  treasurer, 
but  to  be  deemed  the  plaintiffs,  were  not,  it  seems,  competent  witnesses  for  the 
plaintiff  in  an  action  so  brought:  Whitmore  v.  Wilks,  M.  &  M.  (22  E.  C.  L.  K.) 
214;  and  3  C.  &  P.  (14  E.  C.  L.  R.)  3(34. 

°  It  will  be  presumed  that  the  action  is  brought  by  the  direction  of  the  party 
beneficially  interested.  In  an  action  on  a  policy  of  insurance,  brought  in  the 
names  of  the  brokers,  it  appeared  that  A,  one  of  the  parties  for  whose  benefit 
the  policy  was  efiFected,  had  before  the  action  released  to  the  plaintiffs  all  actions 
which  he  might  have  under  the  policy,  and  also  that  since  the  action  two  persons 
to  whom  the  whole  interest  on  the  policy  had  been  assigned,  had,  under  an 
order  of  the  Court  of  C.  P.,  indemnified  the  plaintifi"  against  all  costs,  and  A  was 
tendered  and  examined  as  a  witness  for  the  plaintiffs  on  the  trial  :  held,  on  error, 
that  as  the  action  had  been  brought  in  the  name  of  the  brokers  for  A.''s  benefit, 
it  must,  until  the  contrary  be  shown,  be  presumed  it  was  brought  by  him  and  by 
his  authority,  and  if  so,  he  became  and  remained  still  liable  to  the  attorney 
employed  to  bring  it,  nothing  having  been  done  to  deprive  the  attorney  of  his 
rights  to  recover  costs  from  him  ;  he  was  therefore  improperly  admitted  to  give 
evidence,  and  a  venire  de  novo  was  awarded :  Bell  v.  Smith,  5  B.  &  C.  (11  E.  C. 
L.  R.)  188. 

*  Forrester  v.  Pigou,  1  M.  &  S.  9. 

"  Marleijs  v.  Drarjton,  2  T.  R.  496  ;  Yardley  v.  Arnold,  10  M.  &  W.  141  ; 
Righy  v.  Walthew,  5  Dowl.  527. 

^  But  a  person  interested  in  the  event  is  competent,  when  called  on  to  give 
testimony  contrary  to  his  interest :  Jackson  v.  Vredenhurgh,  1  Johns.  R.  159.  A 
witness  interested  to  diminish  certain  admitted  items,  in  the  plaintiff's  account, 
is  still  a  competent  witness  to  disprove  other  items :  Smith  v.  Carrington,  4 
Cranch  62.  G. 

9 


120  OBJECTIONS     IN     EXCLUSION     OP    WITNESSES. 

The  next  class  of  cases  was  where  the  witness  was  so  situated  that 
a  legal  right  or  liability,  or  discharge  from  liability,"  would  imme- 
diately result.  As  where  the  witness  had  indemnified  a  party  against 
the  result  generally  •/  or  was  bail  for  the  defendant;^  or  was  a  copart- 
ner with  him  in  the  subject-matter  of  the  suit,  and  would  be  liable  to 
contribution  in  case  the  defendant  failed  in  his  defence.* 

It  seems  that,  in  general,  where  a  witness  was  jyrimd  facie  liable 
to  the  plaintiff  in  respect  to  the  cause  of  action  for  which  he  sued,  he 
was  not  a  competent  witness  for  the  plaintiff  to  prove  the  defendant's 
liability.  For  his  evidence  tended  to  produce  payment  or  satisfaction 
to  the  plaintiff  at  another's  expense  ;  and  the  proceeding  and  recov- 
ering against  another  would  afford  strong,  if  not  ^conclusive 

r*i2ii  .  ...  .        . 

L  *^  -I  evidence  against  the  plaintiff  in  an  action  against  the  witness. 
Thus  it  was  held,  that  where  the  witness  yfa,s  jprimd  facie  liable  to  the 
vendor  of  goods  Avhich  he  had  purchased  in  his  own  name,  he  was  not 
a  competent  witness  for  the  vendor  against  a  third  person  to  prove 
that  the  defendant  was  either  solely*"  or  jointly"  liable  for  the  goods; 
for  in  such  case  the  witness  had  a  direct  interest  in  causing  another, 
either  to  pay  or  contribute  to  the  payment  of  the  debt.**  *     So  where 

^  Bland  v.  Ansley,  2  N.  R.  331.  In  replevin  by  an  under-tenant  against  a 
landlord,  who,  towards  discharging  the  rent  due  from  his  tenant,  distrained  as 
bailiff  of  his  tenant  for  the  amount  of  rent  due  from  the  under-tenant  to  the  ten- 
ant: it -was  held,  that  the  tenant  was  not  a  competent  witness  to  prove  the  amount 
of  rent  due  from  the  under-tenant :  Uptoii  v.  Curtis,  1  Bing.  (8  E.  C.  L.  R.)  210  ; 
Hartshorne  v.  Watison,  4  Bing.  N.  C.  (33  E.  C.  L.  R.)  477  ;  Wedgworth  v.  Hartley, 
10  A.  &  E.  (37  E.  C.  L.  R.)  619. 

y  See  infra,  p.  131,  note  (e). 

^  1  T.  R.  164 ;  Bayley  v.  Hole,  ?>  Car.  &  P.  (14  E.  C.  L.  R.)  560 ;  Piesley  v.  Von 
Esch,  2  Esp.  C.  60.5  ;  Fearcy  v.  Fleming,  5  Car.  &  P.  (24  E.  C.  L.  R.)  503. 

»  Hall  V.  Cecil  and  Bex,  6  Bing.  (19  E.  C.  L.  R.)  181 ;  Simons  v.  Smith,  1  Ry. 
&  M.  (21  E.  C.  L.  R.)  29 ;  Cheyne  v.  Koops,  4  Esp.  C.  112  ;  Fcans  v.  Yeatherd, 
2  Bing.  (9  E.  C.  L.  R.)  133.  So  where  a  co-defendant  in  assumpsit  let  judgment 
go  by  default,  he  was  an  incompetent  witness  for  his  co-defendant:  Brown  v. 
Brown,  cited  by  Dallas,  .J..  8  Taunt.  (4  E.  C.  L.  R.)  141  :  and  see  the  observa- 
tions in  3fant  v.  Mainicaring,  8  Taunt.  (4  E.  C.  L.  R.)  139. 

Where  two  partners  being  sued  on  a  bill  as  endorsees,  one  pleaded  his  dis- 
charge by  bankruptcy  and  certificate,  and  a  non-pros,  was  entered  as  to  him  ;  it 
was  held,  that  he  was  tin  admissible  witness  for  his  co-defendant :  Afialo  v.  Four- 
drinier,  6  Bing.  (19  E.  C.  L.  R.)  306  ;  and  see  Moody  v.  King  and  Porter,  2  B. 
L  C.  (9  E.  C.  L.  R.)  558. 

'■  Machrain  v.  Fortune,  3  Camp.  317. 

"  Ripley  v.  Thompson,  12  Moore  (22  E.  C.  L.  R.)  55. 

"  Hodson  V.  Marshall,  7  C.  &  P.  (32  E.  C.  L.  R.)  16. 

'  Where  A.,  an  agent,  whose  principal  B.  is  unknown  at  the  time  of  the  trans- 
action, deals  witli  and  makes  a  contract  of  sale  in  his  own  name  with  C.  ;  in  an 


INTEREST.  121 

a  witness  called  by  the  defendant  had  undertaken  to  indemnify  him 
against  the  -whole  or  part  of  the  damages  or  costs.®  And  a  principal 
was  not  a  competent  Avitness  for  his  surety.' 

So  where  the  issue  involved  any  breach  of  duty,  or  default,  in  re- 
spect of  which  the  witness  would  be  liable  over  to  the  party  calling 
him.  Such  a  witness,  for  whichever  party  called,  was  obviously 
interested  in  protecting  himself  against  the  consequences  of  failure, 
by  procuring  a  verdict  to  pass  for  the  party  who  called  him.  Al- 
though guilty  of  misconduct,  the  record  would  conclusively  show 
that  the  party  calling  him  had  received  no  prejudice,  so  far  as  that 
cause  was  concerned.  If  called  for  the  defendant,  he  would  also  be 
interested  in  obtaining  a  verdict  for  him,  and  to  exclude  a  record, 
which  would  be  evidence  against  himself  as  to  the  amount  of  conse- 
quential damage  in  an  action  afterwards  brought  against  him  by  his 
party. 

Where  the  party  employed  Avas  the  actual  agent  who 
""transacted  the  business  of  the  principal,  he  was  competent  ^  '^"'-' 
on  the  score  of  necessity  f  but  although  an  agent  who  actually  exe- 
cuted the  business  of  the  principal  was,  in  all  cases,  competent  to 
prove  that  he  acted  according  to  the  directions  of  his  principal,  on 
the  ground  of  necessity,  and  because  the  principal  could  never  main- 
tain an  action  against  his  agent  for  acting  according  to  his  own 
directions,  whatever  might  be  the  result  of  the  cause,^  yet  if  the  cause 

*  Where  several  parishioners  at  a  vestry  signed  a  resolution,  approving  of  law 
proceedings  against  surveyors  of  the  highways,  and  guaranteeing  to  the  plaintiff 
the  legal  expenses ;  held  that  it  was  a  personal  liability,  and  rendered  them  in- 
competent: Heudebourck  v.  LaiKjley,  3  C.  &,  P.  (14  E.  C.  L.  R.)  556;  Edmonds 
V.  Lowe,  8  B.  &  C.  (15  E.  C.  L.  R.)  407. 

^  Secus  where  the  principal  had  been  discharged  by  his  bankruptcy  and  cer- 
tificate :  Moody  V.  King,  2  B.  &  C.  (9  E.  C.  L.  R.)  559-,  see  Tomnend  v.  Down- 
ing, 14  East  565. 

8  Adams  v.  Davis,  3  Esp.  C.  48  ;  Matthews  v.  Haydon,  2  Esp.  C.  509  ;  and  per 
Lord  Kenyon  [ibid.),  it  is  the  constant  course  at  Nisi  Prius,  ex  necessitate  rei, 
to  admit  the  evidence  of  clerks  and  porters  who  were  alone  privy  to  the  receipt 
of  money  or  the  delivery  of  goods  :  Spencer  v.  Goulding,  Peake's  C.  129  ;  Baker 
V.  Macrae,  3  Camp.  144 ;  B.  N.  P.  289 ;  and  see  Ilderton  v.  Atkinson,  7  T.  R. 
480;  Evans  v.  Williams,  7  T.  R.  481,  n.  ;  Theobald  v.  Treggott,  11  Mod.  261, 
cor.  Holt,  C.  J. 

^  Morish  v.  Foote,  8  Taunt.  (4  E.  C.  L.  R.)  454.  See  the  observations  of 
Mansfield,  C.  J.,  in  De  Symonds  v.  De  la  Cour,  2  N.  R.  374. 

action  by  C.  against  B.  on  such  contract,  A.  is  not  a  competent  witness  for  the 
plaintiff  to  prove  the  agency  and  the  contract  without  a  release  from  C. :  Hick- 
ling  v.  Fitch,  1  Miles  208  ;  Christy  v.  Smith,  23  Vt.  663. 


122  OBJECTIONS     IN     EXCLUSION     OF    WITNESSES. 

depended  upon  tbo  question  Avlietlier  the  agent  had  been  guilty  of 
some  tortious  act,  or  some  negligence  in  the  course  of  executing  the 
orders  of  the  principal,  and  in  respect  of  which  he  would  be  liable 
over  to  the  principal  if  he  failed  in  the  action,  the  agent  was  not  com- 
petent without  a  release/' 

A  witness  was  also  incompetent  where  the  record  would,  if  his  party 
succeeded,  be  evidence  of  some  matter  of  fact  to  entitle  him  to  a  legal 
advantage,  or  repel  a  legal  liability.'' 

Of  the  witnesses  thus  inadmissible  by  the  common  law,  one  whole 
class,  namely  those  who  were  excluded  by  having  an  interest  in  the  re- 
cord as  an  instrument  of  evidence,  were  rendered  competent  by  the 
Stat.  3  &  4  Will.  IV.,  c.  42.2 

*That  statute,^  in  order  to  render  the  objection  of  witnesses 
L  "  -•  on  the  ground  of  interest  less  frequent,  enacted  that  "  if  any 
witness  should  be  objected  to  as  incompetent  on  the  ground  that  the 
verdict  or  judgment  in  the  action  on  which  it  should  be  proposed  to 
examine  him  Avould  be  admissible  in  evidence  for  or  against  him, 
such  witness  should  nevertheless    be    examined ;  but  in  that  case  a 

'  Rothero  v.  Elton,  Peake's  C.  84;  Miller  v.  Falconer,  1  Camp.  251. 

"  Bent  V.  Baker,  3  T.  R.  27  ;  Smith  v.  Prager,  7  T.  R.  60  ;  Abraham  v.  Bunn, 
4  Burr.  2251.  A  copyholder  was  incompetent  to  prove  a  customary  right  in  the 
manor  for  copyholders  to  take  timber  for  repaii'S  without  assignment  of  the  lord : 
Lady  de  Fleming  v.  Simpson,  2  M.  &  R.  (17  E.  C.  L.  R.)  164. 

'  Sect.  26. 

^  Nothing  is  better  settled,  than  that  the  cases  of  agents,  carriers,  factors  and 
other  servants  of  this  description  constitute  a  class  of  special  exceptions  to  the 
general  rule  that  a  witness  interested  in  the  subject  of  the  suit  is  not  competent 
to  testify  on  the  side  of  his  interest.  And  this  principle  is  extended  to  every 
species  of  agency  or  intervention  by  which  business  is  transacted,  unless  the 
case  is  overborne  by  some  other  rule :  Collins  v.  Lester,  16  Geo.  410 ;  Perkins  v. 
Jordan,  35  Me.  23  ;  Gaijle  v.  Bishop,  14  Ala.  552  ;  Governor  v.  Gee,  19  Ala.  199. 
See  also,  Scott  v.  Jester,  8  Engl.  437.  In  an  action  against  employers  founded 
on  the  imputed  negligence  of  their  agent,  the  testimony  of  the  latter  for  de- 
fendant was  excluded,  on  the  ground  of  interest  in  defeating  the  action  ;  for 
although  in  an  action  against  him  by  the  employers,  the  record  would  not  be 
evidence  to  establisli  his  misconduct,  it  would  be  admissible  to  establish  the 
quantum  of  damages:  Gas  IJght  Co.  v.  City  Council,  9  Rich.  Law  (S.  C.)  342; 
Middkkavffv.  Smith,  1  Md.  329;  McClure  v.  Whiteside,  2  Cart.  573;  Pendall 
v.  licnch,  4  McLean  259 ;  Howe  v.  Wade,  4  Ibid.  319  ;  State  v.  Halloway,  8 
Blackf.  45.  When  the  defence  to  an  action  is  based  on  a  breach  of  duty  on  the 
part  of  the  plaintiflT's  agent,  he  cannot  be  called  to  disprove  such  defence :  Finn 
Vallag/i  Street  Wharf  Co.,  7  Cal.  253.     See  ante,  p.  27,  note  1. 

'  Ah  to  the  statutory  enactments  in  the  United  States  on  the  subject  of  the 
coiiii)etoricy  of  witnesses,  see  ante,  p.  2S,  note  1. 


INTEREST,     LIABILITY     OVER,  123 

verdict  or  judgment  in  that  action  in  favor  of  the  party  on  whose 
behalf  he  should  have  been  examined  should  not  be  admissible  in 
evidence  for  him,  or  any  one  claiming  under  him,  nor  should  a  ver- 
dict or  judgment  against  the  party  on  whose  behalf  he  should  have 
been  examined  be  admissible  in  evidence  against  him,  or  any  one 
claiming  under  him." 

This  enactment  appears  to  have  been  founded  upon  the  principle 
of  rendering  a  witness  competent,  by  removing  the  interest  which 
would  otherwise  have  disqualified  him.  The  legislature  seems  not 
to  have  contemplated  the  admitting  of  the  testimony  of  a  witness  in 
violation  of  the  original  principle  of  exclusion  from  interest,  but, 
preserving  that  principle  inviolate,  to  have  intended  to  enlarge  the 
limits  of  avail  ible  evidence  by  the  actual  removal  of  interest,  which 
previously  impeded  its  reception.  This  was  proposed  to  be  done  by 
silencing  the  record  in  certain  cases,  and  so  removing  any  interest 
under  which  the  witness  might  otherwise  labor  either  to  procure  a 
verdict  and  judgment,  which  would  be  evidence  for  him,  or  to  pre- 
clude a  verdict  and  judgment,  which  would  be  evidence  against  him. 
Consistently  with  this  principle,  the  competency  of  a  witness  would 
not  appear  to  have  been  meant  to  be  restored  in  any  case  where, 
although  the  record  were  silenced,  he  would  still  have  an  interest, 
independently  of  the  use  of  the  record  as  evidence,  in  some  other 
proceeding  resulting  as  a  consequence  from  the  verdict  and  judg- 
ment. 

*With  reference  to  the  decisions  on  this  statute:  It  seems  r*-|9i-i 
to  have  been  considered  from  the  first  that  the  statute 
always  rendered  a  witness  competent  in  the  last  class  of  cases  men- 
tioned above,  in  which  the  sole  objection  was  that  the  record  would 
be  evidence  as  to  a  matter  of  fact,  e.  g.  a  custom,™  in  which  the 
witness  had  an  interest.  And,  according  to  the  latter  construction 
given  to  it,  the  operation  of  the  statute  seems  to  have  embraced  all 
cases  where  the  verdict  and  judgment  could  be  used  by  or  against 
him,  either  as  evidence,  or  to  establish  any  right,  or  to  discharge 
him  from  any  liability,  and  where  it  would  be  necessary  to  use  the 
record    for    that    purpose."^      These    decisions    proceeded    upon    the 

""  A  copyholder  was  held  competent  to  prove  a  custom  of  the  manor  on  behalf 
of  another  copyholder :  Hoijle  v.  Coupe,  9  M.  &  W.  450  ;  Stuart  v.  Barnes,  1  M. 
&  Rob.  472. 

"  Ycomans  v.  Legh,  2  M.  &  W.  419  ;  Faith  v.  MIntyre,  7  C.  &  P.  (32  E.  C.  L. 
R.)  44  ;  Knight  v.  Woore,  7  Car.  &  P.  (32  E.  C.  L.  R.)  259.  But  in  an  action 
by  a  corporation  to  establish  a  right  of  common  for  the  benefit  of  the  corpora- 
tion, a  corporator  was  not  rendered  competent  by  3  &  4  Will.  IV.  c.  42  :  God- 
manchester  [Bailiffs  of)  v.  Phillips,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  550. 


124  OBJECTIONS     IN     EXCLUSION     OF     WITNESSES. 

ground  that  the  effect  of  calling  the  witness  being  effectually  to 
silence  the  record,  since  neither  the  existence  of  the  action  nor  the  re- 
sult could  be  proved  but  by  the  record,  the  witness's  interest  would  be 
as  much  extinguished  as  if  no  such  proceeding  had  taken  place. 

Still  this  act  only  removed  the  objection  where  the  witness  was 
incompetent,  on  the  ground  that  "the  verdict  or  judgment  in  the 
action  on  which  it  was  proposed  to  examine  him,  would  have  been 
admissible  in  evidence  for  or  against  him."  It  did  not  extend 
beyond  this,  and  the  witness  was  still  incompetent  if  he  labored 
under  any  interest  independently  of  the  record,  or  he  could  avail 
himself  of  the  verdict  indirectly,  without  the  production  of  the 
record.  Thus  it  was  held  that  the  statute  did  not  apply  where  the 
issue  was  directed  by  a  court  of  equity,  for  in  such  a  case  the  wit- 
r^].^--\  ness,  notwithstanding  the  statute,  *would  be  able  to  take 
advantage  of  a  decree  founded  on  the  verdict." 

The  next  important  step  upon  the  subject  of  evidence  was  taken 
at  the  instance  of  Lord  Benman.  The  stat.  6  &  7  Vict.  c.  85,  after 
reciting  "  that  the  inquiry  after  truth  in  courts  of  justice  is  often 
obstructed  by  incapacities  created  by  the  present  law ;  and  it  is 
desirable  that  full  information  of  the  facts  in  issue,  both  in  criminal 
and  civil  cases,  should  be  laid  before  the  persons  who  are  appointed 
to  decide  upon  them,  and  that  such  persons  should  exercise  their 
judgment  on  the  credit  of  the  witnesses  adduced,  and  on  the  truth  of 
their  testimony;"  proceeded  to  enact,  "  that  no  person  offered  as  a 
witness  shall  hereafter  be  excluded  by  reason  of  incapacity  from 
crime  or  interest  from  giving  evidence ;  but  that  every  person  so 
offered  may  and  shall  be  admitted  to  give  evidence  on  oath  or  solemn 
affirmation,  notwithstanding  that  such  person  may  or  shall  have  an 
interest  in  the  matter  in  question,  or  in  the  event  of  the  trial  of  any 
issue,  matter,  question,  or  inquiry,  or  of  the  suit,  action  or  pro- 
ceeding in  which  he  is  offered  as  a  witness,  and  notwithstanding  that 
such  person  offered  as  a  witness  may  have  been  previously  convicted 
of  any  crime  or  offence  ;  Provided  that  this  act  shall  not  render 
competent  any  party  to  any  suit,  action,  or  proceeding  individually 
named  in  the  record  ;  or  any  lessor  of  the  plaintiff,  or  tenant  of 
premises  sought  to  be  recovered  in  ejectment ;  or  the  landlord  or 
other  person  in  whose  right  any  defendant  in  replevin  may  make 
cognizance  ;  or  any  person  in  whose  immediate  and  individual  behalf 
any  action  may  be  brought   or  defended,  either  wholly   or  in   part ; 

°  Stuart  V.  Barnes,  ]  M.  &  llol).  472  ;  and  sec  Olirer  v.  Latham,  1  Turn.  &  Ph. 
1G;;  ;  liarljcr  v.  Birch,  G  M.  et  G.  (46  E.  C.  L.  R.)  ^O?. 


INTEREST — 3    &    4    WILL    IV.    C.  42.  125 

or  the  husband  or  wife  of  such  persons  respectively,"  It  also  en- 
acted, "  that  in  courts  of  equity  any  defendant  to  any  cause  pending 
in  any  such  court  may  be  examined  as  a  witness  on  behalf  of  the 
plaintiff,  or  of  any  co-defendant  in  any  such  cause,  saving  just 
exceptions;  "''and  that  any  interest  which  such  defendant  r*-|.-?^n 
so  to  be  examined  may  have  in  the  matter  or  any  of  the 
matters  in  question  in  tlie  cause  shall  not  be  deemed  a  just  excep- 
tion to  the  testimony  of  such  defendant,  but  shall  only  be  considered 
as  affecting,  or  tending  to  affect  the  credit  of  such  defendant  as  a 
witness." 

This  statute  likewise  contains  a  provision,  which  is  repeated  in 
the  subsequent  Act  we  shall  have  presently  to  consider,  viz.,  that 
it  should  not  repeal  the  Act  7  Will.  IV.,  and  1  Vict.  c.  26,  for  the 
amendment  of  the  Law  relating  to  Wills. 

Up  to  the  period  of  this  enactment  it  has  been  remarked  that  the 
principle  of  the  exclusion  of  interested  witnesses  in  the  superior 
courts  had  been  rigidly  adhered  to.  The  immediately  preceding 
statute,  in  rendering  the  Avitness  competent  by  reason  of  the  extinc- 
tion of  his  interest  involved  the  introduction  of  no  new  princi- 
ple, inasmuch  as  it  merely  adopted  an  expedient  frequently  resorted 
to  by  the  parties  through  the  medium  of  a  release  given  to,  or  by 
the  witness.  But  this  enactment  had  a  far  wider  scope,  for  it  posi- 
tively abrogated  the  general  rule  that  an  interested  person  should 
not  be  a  witness.  Yet  it  must  be  observed  that  even  then  the 
legislature  by  no  means  wholly  disregarded  the  principle  of  the 
exclusion  of  a  witness  on  the  ground  of  interest.  The  various  ex- 
ceptions to  the  general  provision  still  recognized  its  expediency ;  but 
their  effect  was  to  confine  its  operation  to  the  five  categories  men- 
tioned in  the  proviso.  With  respect  to  these  it  is  important  to  notice 
that  the  statute  did  not  render  the  persons  included  within  them 
incompetent,  but  merely  excepted  them  out  of  its  operation  ;  conse- 
quently they  remained  unaffected  by  the  statute,  and  in  the  same 
condition  as  to  admissibility  as  they  were  before  it  passed.  Hence 
it  becomes  important,  with  a  view  more  especially  to  the  first  and 
last  exception,  to  ascertain  under  what  circumstances  those  persons 
were  previously  incompetent  as  witnesses,  and  we  *will  r*-|.77T 
proceed  to  consider  what  persons  fell  within  the  words  of 
these  exceptions,  and  in  what  cases  they  were  previously  incompetent 
in  the  following  order. 

1st.  "A  party  to  any  suit,  action,  or  proceeding  individually 
named  in  the  record,"  was  always,  except  in  the  peculiar  case  of 


127  OBJECTIONS     IN     EXCLUSION     OF    WITNESSES. 

necessity, P  an  incompetent  witness  in  his  own  behalf,  on  the  ground 
of  interest.*^  ^  But  parties  named  upon  the  record  were  not  as  such, 
and  on  that  account,  incompetent ;  their  incompetency  arose  exclu- 
sively from  their  interest,  and  if  they  Avere  willing  to  give  evidence 
they  might  be  called  by  the  opposite  parties.  Thus,  in  an  action  on 
a  joint  bond  against  the  principal  and  two  sureties,  where  one  surety 
and  the  principal  had  suffered  judgment  by  default,  and  the  other 
surety  defended,  the  principal  was  held  to  be  a  competent  witness 

*for  the  plaintiff;''  and  so  was  a  co-defendunt  in  an  action 
r*l281  ... 

'-     "  -•    for  a  malicious  prosecution,  who   had  suffered  judgment  by 

P  See  ante,  p.  27. 

•1  Though  he  were  only  a  trustee,  he  was  incompetent,  because  he  would  be 
responsible  for  the  costs :  Bauerman  v.  Radenius,  7  T.  R.  663.  So  in  equity 
one  plaintiff  could  not  be  examined  for  another  plaintiff  without  the  defendant's 
consent:  Fyler  v.  Newcomh,  19  L.  J.  C.  C.  278.  And  one  defendant  could  not 
be  examined  for  another  defendant  in  the  same  interest :  Wood  v.  Rowcliffe,  6 
Hare  183  ;  but  see  Monday  v.  Giti/er,  1  De  Gex  and  Smale  182. 

It  should  perhaps  be  stated  here  that  there  were  some  statutory  provisions 
enabling  parties  to  give  evidence  in  their  own  behalf,  besides  the  recent  County 
Courts  Act,  9  &  10  A'ict.  c.  95,  s.  83,  which  directs  that  the  parties  or  their  wives 
may  be  examined  in  those  Courts.  Thus  under  the  Companies  Clauses  Consoli- 
dation Acts,  and  the  Lands  and  Railway  Clauses  Consolidation  Acts,  8  &  9  Vict, 
c.  16,  s.  132;  8  &  9  Vict.  c.  18,  s.  32 ;  8  &  9  Vict.  c.  20,  s.  133,  parties  might  be 
examined  by  the  arbitrators,  or  by  arbitrators  appointed  to  settle  disputes  be- 
tween masters  and  workmen,  5  Geo.  IV.  c.  96,  ss.  5,  6.  Trustees  and  other 
members  of  loan  societies,  under  3  &  4  Vict.  c.  110.  Officers  of  the  army  and 
navy,  and  marines,  and  of  the  customs  and  excise,  under  3  &  4  Will.  IV.  c.  53, 
in  suits  which  entitle  them  to  the  penalties  sued  for  or  goods  seized.  As  to  in- 
habitants, or  persons  rated  or  rateable,  or  holding  office  in  any  parish,  &c.,  in 
matters  relating  to  rates,  boundaries,  removals,  &c.,  see  53  Geo.  III.  c.  70,  s.  9; 
and  3  &  4  Vict.  c.  26 ;  and  infra,  note  (e). 

■■  Worrall  v.  Jones  and  another,  7  Ring.  (20  E.  C.  L.  R.)  325  ;  overruling  Chap- 
man V.  Graves,  2  Camp.  333,  n. ;  and  see  per  Maule,  J.,  5  C.  B.  (57  E.  C.  L.  R.) 
685. 

^  There  are  some  cases  in  which  a  plaintiff  is  ex  necessitate  a  good  witness  as 
1.  To  prove  notices  in  the  course  of  the  cause  :  Fred  v.  Eves,  4  Ilarring.  385  ; 
Siltzell  V.  Michael,  3  W.  &  S.  329  ;  Jordan  v.  Cooper,  3  S.  &  R.  564.  2.  To  prove 
his  own  book  of  original  entries :  Prince  v.  Smith,  4  Mass.  455  ;  Poultney  et  al. 
V.  Ross,  1  Dall.  239.  3.  To  prove  the  loss  of  documents  to  let  in  secondary  evi- 
dence:  Fitch  v.  Bogue,  19  Conn.  285;  Chamberlain  v.  Gorham,  20  Johns.  144. 
4.  In  an  action  against  a  carrier  or  innkeeper  for  the  loss  of  his  baggage  to 
prove  the  contents  of  his  trunk :  Taylor  v.  Monnat,  4  Ducr  116;  Wriyht  v.  Cald- 
well, 3  Mich.  51  ;  Lamplei/  v.  Scott,  24  Miss.  528  ;  Sparr  v.  Wcllman,  U  Mo.  230 ; 
County  v.  Leidy,  10  Barr  45,     See  ante,  p.  28,  note  1. 


INTEREST — 6    &    7   VICT.    C.    85 — EXCEPTION    1.  128 

default/  *  There  had  been  a  similar  decision  in  the  case  of  a  co- 
contractor  who,  having  suffered  judgment  by  default,  was  held  to  be 
an  admissible  witness  for  the  plaintiff,  if  he  were  not  interested  in 
procuring  a  verdict  for  him.'  And  a  defendant  in  an  indictment, 
who  had  pleaded  guilty,  has  been  held  by  the  judges  to  be  an  admis- 
sible witness  for  the  Crown  on  the  trial  of  other  parties  included 
in  it." 

»  Eaddrick  v.  Heslop,  VI  Q.  B.  (64  E.  C.  L.  R.)  267 ;  B.  N.  P.  285 ;  1  Sid. 
441. 

*  Pipe  V.  Steel  and  another,  2  Q.  B.  (42  E.  C.  L.  R.)  733  ;  Dresser  v.  Clarke,  1 
C.  &  K.  (47  E.  C.  L.  R.)  569— overruling  Brown  v.  Broion,A  Taunt.  752;  Green 
V.  Sutton,  2  M.  &  Rob.  269 ;  Mant  v.  Mainwaring,  8  Taunt.  (4  E.  C.  L.  R.)  139, 

"  Reg  V.  Hinks,  2  Car.  &  K.  (61  E.  C.  L.  R.)  462;  Reg  v.  George,  Car.  &  M. 
(41  E.  C.  L.  R.)  111.  "Where  an  accomplice  is  to  be  called  as  a  witness,  the 
usual  course  is  to  leave  him  out  of  the  indictment ;  see  tit.  Accomplice  ;  or  if  he 
has  been  inadvertently  included  in  the  indictment,  should  it  be  deemed  necessary, 
an  acquittal  might  be  taken  as  to  him,  or  the  Attorney-General  might  enter  a  nolle 
prosequi :  Ward  v.  Ma^t,  2  Atk.  229,  by  Lord  Hardwicke,  who  said,  that  in  Crown 
prosecutions,  no  defendant  can  be  examined  on  behalf  even  of  the  King,  but 
the  Attorney-General  enters  a  nolle  i^rosequi  against  that  particular  defendant 
before  he  can  be  admitted  as  a  witness ;  and  that  this  was  done  in  a  case  by 
Trevor,  when  Attorney-General.  See  also  the  case  of  The  King  v.  Ellis,  Blake 
and  others,  Sitt.  after  Trin.  1802,  Macnally  55  ;  where  on  an  information  by  the 
Attorney-General  (Law)  against  several  for  a  conspiracy,  he  entered  a  nolle pro- 

^  Manchester  Bank  v.  Moore,  19  N.  H.  564 ;  Parsons  v.  Phipps,  4  Tex.  341. 
One  of  two  defendants,  consenting  to  be  sworn,  though  objected  to  by  the 
other  defendant,  is  a  competent  witness  for  the  plaintiff:  Carrie  v.  Calder,  6 
Rich.  198;  Kincaid  v.  Purrell,  1  Cart.  324;  Thompson  v.  Blanchard,  4  Cbmst. 
303  ;  Miner  v.  Downer,  20  Vt.  461.  A  witness  interested  by  having  warranted 
a  title,  is  competent  to  impeach  it,  he  then  testifying  against  his  interest :  Rohb 
V.  Lefevre,  7  Clarke  150 ;  Stewart  v.  Chadwick,  8  Clarke  463  ;  Clinton  v.  Estes, 
20  Ark.  216.  When  the  title  to  property  is  in  controversy,  a  person  who  is 
bound  to  make  it  good  to  one  of  the  litigating  parties  against  the  claim  of  the 
other  is  identified  in  interest  with  that  party  and  cannot  testify  in  his  favor  : 
Meek  V.  Walthall,  20  Ark.  648  ;  Wright  v.  Bonta,  19  Tex.  385.  Merely  being  a 
party  to  the  record,  does  not,  of  itself,  render  the  party  incompetent  to  testify, 
when  called  for  that  purpose,  by  the  opposite  party  ;  if  willing  to  testify  he  is 
competent,  notwithstanding  the  objection  of  his  co-plaintifif  or  co-defendant, 
provided  his  interest,  if  any  in  the  suit,  is  adverse  to  the  party  calling  him  : 
Ware  v.  Bennett,  18  Tex.  794.  A  stockholder,  who  transfers  his  stock  after  the 
commencement  of  a  suit,  is  a  competent  witness  for  the  corporation  :  Smith  v. 
Tallahassa  Branch,  30  Ala.  650  ;  Tuolumne  Co.  v.  Columbia  Co.,  10  Cal.  193. 
A  member  of  the  society  of  free-masons  is  a  competent  witness  for  the  society, 
which  is  a  charitable  organization  :  Burdin  v.  Grand  Lodge,  1  Ala.  Sel.  Cas.  385. 
When  parties  are  made  witnesses,  they  must  testify,  subject  to  the  same  rules 
as  other  witnesses:  Wheelden  v.  Wilson,  44  Me.  11. 


129  OBJECTIONS     IN     EXCLUSION     OF     WITNESSES. 

*A  party  likewise  who  had  ceased  to  be  interested  in  the 

r*i29i         X    -^ 

•-  -•  result  might  be  called  by  his  co-plaintiff,  or  co-defendant. 
Thus,  in  an  action  against  two  partners  as  acceptors  of  a  bill  of  ex- 
change, one  of  the  defendants  who  had  pleaded  his  bankruptcy  and 
certificate,  whereupon  the  plaintiff  had  entered  a  nolle  jjrosequi  against 
him,  was  held,^  after  releasing  his  surplus,  to  be  an  admissible  witness 
for  his  co-defendant.  So  where  several  were  indicted  together,  one 
defendant,  as  to  whom  a  nolle  prosequi  had  been  entered,  might  be 
called  as  a  witness  for  the  other  defendants ;  and  so  might  one  Avho 
had  pleaded  guilty,  or  one  who  was  not  arraigned '/  unless  indeed 

sequi  against  two,  who  were  examined  as  witnesses  against  the  others.     And  in 

B.  N.  P.  285,  it  is  said  that  the  court  would  not  allow  the  Attorney-General  on 
the  trial  of  an  information  for  a  misdemeanor,  to  examine  a  defendant  for  the 
King,  without  entering  a  nolle  j^rosequi  as  to  him.  But  qucere,  whether  in  that 
case  the  witness  had  not  been  put  upon  his  trial  at  the  same  time?  and  see  note 
(Z),  post.  But  yet  although  he  be  jointly  indicted  for  an  offence  which  is  several 
in  its  nature,  it  may  be  doubted  whether  he  be  not  still  competent,  provided  he 
be  not  put  upon  his  trial  at  the  same  time  ;  for  though  several  be  indicted  jointly 
for  the  same  ofiFence,  yet  the  indictment,  where  the  nature  of  the  offence  is  several, 
is  also  several  as  to  each,  and  the  case  seems  to  be  just  the  same  as  if  each  had 
been  severally  indicted,  when  they  would  have  been  witnesses  for  each  other  (2 
Hale  280,  2  Roll.  Abr.  685,  pi.  3)  ;  they  must  therefore,  as  it  seems,  be  also 
equally  competent  as  witnesses  against  each  other. 

^.  Aflalo  V.  Fourdrinier,  6  Bing.  (19  E.  C.  L.  R.)  306  ;  Moody  v.  Kinr/,  2  B.  & 

C.  (9  E.  C.  L.  R.)  558. 

y  See  tit.  Accomplice.  In  R.  v.  Lafone,  5  Esp.  C.  154,  on  an  indictment  for 
obstructing  excise  officers.  Lord  Ellenborough  would  not  permit  co-defendants, 
who  had  suffered  judgment  by  default,  to  be  examined  as  witnesses  for  the  de- 
fendant who  was  tried,  saying,  that  he  had  never  known  such  evidence  admitted 
on  an  indictment  for  a  joint  offence.  The  cases  on  the  subject  were  not,  it  seems, 
adverted  to  on  that  occasion.  In  E.  v.  Fletcher,  Str.  633,  one  who  had  suffered 
judgment  by  default  on  a  joint  indictment  for  an  assault,  and  having  been  fined 
a  shilling  and  had  paid  it,  was  admitted  as  a  witness  for  the  other  defendant. 
There  indeed  the  witness  had  been  fined  ;  but  it  is  difficult  to  see  how  the  cir- 
cumstance, that  the  judgment  has  been  pronounced  and  executed  on  the  witness, 
can  make  any  difference  as  to  his  competency,  or  how  his  giving  evidence  can  at 

'  There  are  conflicting  decisions  in  the  United  States  as  to  whether  a  party, 
plaintiff,  by  assigning  his  claim  and  making  an  absolute  payment  into  court  of  a 
sum  of  money  sufficient  to  meet  all  the  costs  of  the  suit,  can  be  a  competent 
witness  to  establish  the  claim,  having  thus  divested  himself  of  all  interest : 
Central  It.  It.  Co.  v.  Ilines,  19  Geo.  203  ;  Folci/  v.  Mason,  6  Md.  37  ;  Owings  v. 
Emery,  7  Gill.  405  ;  Patterson  v.  Cohb,  4  Fla.  481  ;  Bridges  v.  Armour,  5  How. 
91;  Evans  v.  Gibbs,  6  Humph.  405;  Benjamin  v.  Coventry,  19  Wend.  353; 
Willing  v.  Consequa,  Peters  C.  C.  248  ;  Steele  v.  Phmnix  Ins.  Co.,  3  Binn.  306  ; 
Hart  V.  Ilellner,  3  Rawle  407  ;  Pc^t  v.  Avery,  5  W.  &  S.  510 ;  Wolfx.  Fink,  1 
liarr  173  ;  Park  v.  Bird,  3  Barr  361  ;  Norris  v.  Johnston,  5  Barr  290. 


INTEREST — 6    &    7    VICT.    C.    85 — EXCEPTION    1.  130 

in  cases,  such  as  *conspiracy  or  riot,  where  disproving  joint    r*i  on-i 
guilt  might  defeat  the  prgsecution   even   against  the  witness 
himself. 

But  where  a  party  on  the  record  was  interested  on  the  side  of  the 
person  who  called  him,  he  was  not  admissible.  Thus  in  an  action  of 
assumjjsit  one  defendant,  who  had  suffered  judgment  by  default,  was 
not  an  admissible  witness  for  another  defendant  in  the  action  who 
had  pleaded  the  general  issue,  for  if  he  disproved  the  joint  contract 
he  would  relieve  himself;^  and  so  a  defendant  in  trover  or  trespass, 
who  had  suffered  judgment  by  default,  was  not  an  admissible  Avitness 
for  a  co-defendant  who  had  pleaded,  where  the  jury  were  summoned 
to  assess  the  damages  as  well  as  to  try  the  issue  joined  by  the  one  who 
defended,  for  he  had  an  interest  in  reducing  the  damages.^  ^ 

all  alter  and  aifect  his  legal  situation.  It  has  been  held,  that  upon  several  in- 
dictments against  three  for  perjury  in  provino;  a  bond,  each  was  a  witness  for 
the  others  :  E.  v.  Bilinore,  Gray  and  Harbin,  2  Hale  280  ;  and  see  also  Gunston 
V.  Dotcns,  Ibid,  and  2  Rol.  Abr.  6S5.  pi.  3.  According  to  the  same  principle,  if 
each  had  been  separately  indicted  for  a  battery  or  larceny,  the  others  would 
have  been  competent  witnesses ;  for  the  same  reason  applies  which  is  given  by 
Lord  Hale,  viz.,  that  they  are  not  immediately  concerned  in  the  trial  against 
the  third,  and  therefore  they  would,  it  should  seem,  be  also  competent,  although 
they  were  all  to  be  included  in  one  indictment,  which  in  legal  effect  operates  as 
a  several  indictment  as  to  each  ;  see  R.  v.  Frederick  and  Tracy,  Str.  1095,  Avhere 
upon  an  indictment  against  several  for  an  assault,  the  reason  for  refusing  to 
admit  the  wife  of  one  as  a  witness  for  another  defendant,  was,  that  it  was  im- 
possible to  separate  the  case  of  the  two  defendants  :  R.  v.  Sherman,  C.  T.  H. 
303.  It  has  indeed  been  suggested,  that  if  one  who  suffered  judgment  by  de- 
fault were  a  competent  witness,  one  defendant,  by  so  doing,  might  protect  the 
rest  (5  Esp.  C.  155)  ;  assuming  it  to  be  probable  that  one  of  several  delinquents 
would  sacrifice  himself  for  the  salvation  of  the  rest,  it  would  by  no  means  be  a 
necessary  consequence  that  he  would  be  able  to  screen  them  ;  his  credit  would 
be  open  to  the  observation  of  the  jury,  and  be  subject  to  much  suspicion.  Where, 
however,  the  offence  is  of  such  a  nature,  that  an  acquittal  of  his  associates 
would  enure  to  his  own  discharge  a  co-defendant  would  be  incompetent.  Thus 
an  accessory  before  or  after  the  fact  would  be  incompetent  as  a  witness  for  the 
principal ;  and  see  tit.  Conspiracv.  Where  several  are  indicted  and  tried 
together,  if  at  the  close  of  the  prosecutor's  case  there  appears  to  be  no  evidence 
against  one  defendant,  the  judge. will  direct  his  acquittal,  in  order  that  he  may 
be  called  as  a  witness  by  another  defendant :  R.  v.  Fraser,  Macnally  56  ;  R.  v. 
Oioen,  9  Car.  &  P.  (38  E.  C.  L.  R.)  83. 

^  Brotvn  v.  Fox,  1  Phil,  on  Evid.  9th  ed.  49  ;  Bell  v.  Banks,  3  M.  &  G.  (42  E. 
C.  L.  R.)  261. 

"Mash  V.  Smith,  1  Car.  &  P.  (12  E.  C.  L.  R.)  577  ; per  Burroughs,  J.,  Webber 
V.  Budd,  Rose,  on  Evid.  121,  7th  ed. ;  and  so  even  after  the  statute  6  &  7  Vict. 
c.  85  ;  Thorpe  v.  Barber  and  another,  5  C.  B.  (57  E.  C.  L.  R.)  675. 

^  Thornton  v.  Blaisdell,  37  Me.  190;  King  v.  Lowry,  20  Barb.  532;  Rice  v. 
Morton,  19  Mo.  263  ;   Chase  v.  Lovering,  7  Fost.  295.     See  Barker  v.  Ayres,  5 


131  OBJECTIONS     IN     EXCLUSION    OF     WITNESSES. 

*Under  this  statute,  therefore,  a  party  to  the  record  might 

r*i3ii  •  •        ^    I    J        ... 

L  -J  still  be  examined  as  a  witness  wherever  he  was  indifferent  or 
was  called  upon  to  be  such  adversely  to  his  own  interest.  It  is  true 
that  there  might  be  no  compulsion*"  upon  him  to  attend,  there  being 
no  instance  in  which  the  court  ever  punished  a  party  to  the  suit  for 
non-attendance  or  a  refusal  to  give  evidence  as  a  witness,  or  an  action 
had  been  brought  against  him  on  that  account,  and  hence  resort  was 
generally  had  in  such  cases  to  a  bill  of  discovery  ;  but  if  he  did  attend, 
and  was  willing  to  give  evidence,  there  was  no  rule  which  enabled  the 
court  to  reject  his  testimony. 

Previously  to  the  passing  of  this  statute  in  an  action  by  or  against 
a  corporation  or  other  body,  the  members  of  which  were  not  men- 
tioned by  name  on  the  record,  a  member  having  any  private''  interest 
in  the  result  was  not  competent  as  a  witness  on  behalf  of  the  body 
on  account  of  that  interest.**  The  interest,  however,  of  such  a  per- 
son was  obviously  very  different"  from  that  of  an  ordinary  party, 
and^  it  would  seem  that  the  legislature  introduced  the  words,  "  any 
party  individually  named,"  in  contradistinction^  to  persons  described 
^  „^^  by  *some  no7nen  collectivum  upon  the  record,  so  that  a  person 
'-       ~-J    who  is  not  named  "as  an  individual  might  not  fall  within 

^  Rex  V.  Wohurn,  10  East  395  ;  Fenn  v.  Granger,  3  Camp.  77  ;  Rex  v.  Adder- 
hurrj,  5  Q.  B.  (48  E.  C.  L.  R.)  187. 

•=  If  he  had  no  private  interest,  but  simply  an  interest  as  one  of  the  public,  he 
was  competent:  Fletcher  v.  Greenwell,  1  C.  M.  &  R.  754;  M^Gahey  v.  Alston,  2 
M.  &  W.  20G  ;  and  see  Welter  v.  The  Governors  of  the  Foundling  Hospital, 
Peake  153. 

d  B.  N.  P.  290 ;  Davis  v.  Morgan,  1  Tyr.  457  ;  Burton  v.  Einde,  5  T.  R.  174 ; 
Bailiffs  of  Godmanchester  v.  Phillips,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  550. 

*  There  were  various  statutes  which  enable  inhabitants  and  other  persons  to  be 
witnesses  where  the  proceedings  were  by  or  against  them  in  their  quasi  corpo- 
rate capacity:  1  Anne,  c.  18,  s.  13;  8  Geo.  II.  c.  16,  s.  15;  27  Geo.  III.  c.  29  ; 
7  &  8  Geo.  IV.  c.  29  ;  and  3  &  4  Will.  &  M.  c.  11 ;  54  Geo.  III.  c.  170,  s.  9  ;  3  &  4 
Vict.  c.  26,  ss.  1  and  2. 

'  See  R.  V.  Mayor,  dc,  of  London,  2  Lev.  231  ;  1  Vent.  351. 

8  Per  Parke,  B.,  Sinclair  v.  Sinclair,  13  M.  &  W.  645. 

Md.  202.  In  an  action  not  on  contract  commenced  against  two  and  process 
served  on  one  only,  the  one  not  served  ceases  to  be  a  party,  and  is  a  competent 
witness  for  either  party:  Robinson  v.  Frost,  14  Barb.  536.  Ordinarily  a  joint- 
tort-feasor  is  a  competent  witness  for  either  i)art3%  if  he  be  not  sued  or  be  sued 
in  a  separate  action,  or  being  joined  liave  suU'ored  judgment  to  be  rendered 
against  himself:  Paine  v.  Tilden,  20  Vt.  554.  When  judgment  is  recovered 
against  two  jointly,  and  it  is  opened  as  to  one  only,  who  is  let  into  a  defence, 
the  other  is  a  competent  witness  for  him,  his  own  liability  being  determined: 
Talinage  v.  Burlijigamc,  9  Barr  21.  A  co-tref- passer  named  but  not  served  is 
competent  for  tlie  other  defendants :  Entrikcn  v.  Brown,  8  Gas.  364. 


INTEREST — 6    &    7    VICT,    C.    85 — EXCEPTION    1.  132 

the  exception  ;  consequently  it  would  appear  that  a  member  of  a 
corporation  aggregate,  or  other  like  body,  so  far  as  tliis  exception 
Avas  concerned,  was  rendered  a  competent  witness  by  the  general 
provision. 

The  procliein  ami,  or  guardian  of  an  infant,  was  formerly  incom- 
petent on  the  ground  of  his  interest  in  the  cause  to  save  himself  from 
the  payment  of  costs,  for  which,  in  case  of  failure,  he  Avas  personally 
responsible ;  but  in  construing  the  words  of  this  exception  the  Court 
held,  that  the  person  to  fall  within  its  terms  must  be  a  person  who  is 
named  as  a  party  to  the  proceeding,  and  therefore  that  a  prochein 
ami,  who  is  in  reality  only  an  attorney  for  the  conduct  of  the  suit, 
might  be  called  as  a  witness  for  the  infant. *"  ^ 

2(lly.  "  Any  lessor  of  the  plaintiff,  or  tenant  of  premises  sought 
to  be  recovered  in  ejectment,"  might  always  have  been  examined; 
the  former,  if  he  were  willing  to  give  evidence,'  by  the  defendant ; 
the  latter,  by  the  jDlaintiff":''  but,  inasmuch  as  the  former  of  these 
persons  had  an  immediate  and  direct  interest  in  preventing  a  verdict 
for  the  defendant,  both  on  account  of  the  result  which  would  confer 
on  him  the  right  of  possession  of  the  property,  and  of  the  liability  to 
costs  which  would  ensue  from  such  a  verdict,  he  was  not  an  admis- 
sible witness  for  the  plaintiff,  although  there  might  be  demises  by 
other  persons  in  the  declaration.^  So  the  tenant  of  the  premises 
was  interested  in  defeating  a  verdict  for  the  plaintiff,  which  would 
turn  him  out  of  possession  ;"  but,  as  he  was  not  a  party  to  the  suit, 
he  might  have  been  subpoenaed  on  the  *part  of  the  plaintiff 
and  forced  by  him  to  give  his  testimony.  The  effect  of  the  ^  -^ 
statute  was  not  to  exclude  these  persons  from  being  Avitnesses  at  all, 
but  simply  to  leave  them  incompetent  on  that  side  which  they  were 
interested  in  supporting. 

3dly.  "  The  landlord,  or  other  person  in  whose  right  any  defend- 
ant in  replevin  made  cognizance,"  was  always  an  admissible  witness 

"  Sinclair  v.  Sinclair,  13  M.  &  W.  640;  Melhuish  v.  Colhjcr,  19  L.  J.,  N.  S., 
Q.  B.  493, 

'  Feme  dem.  Pewtress  v.  Granger,  3  Camp.  177. 

"  Doe  V.  Green,  4  Esp.  198. 

'  But  if  he  consented  that  a  verdict  should  be  entered  against  him,  on  his  de- 
mise, he  might  be  examined  for  the  other  lessors,  ^er  cur.  2  Ad.  &  E.  (29  E.  C. 
L.  R.)  339. 

"  Doe  dem.  Foster  v.  Williams,  Cowp.  621  ;  Doe  v.  Wilde,  5  Taunt.  (1  E.  C.  L. 
R.)  183;  Doev.  Bingham,  4  B.  &  Aid.  (6  E,  C,  L.  R.)  Doe  dem.  Willis  v.  Birch- 
more,  9  Ad,  &  E.  (36  E.  C.  L.  R.)  662, 

^  Pryor  v,  Ei/burn,  16  Ark,  671  ;  Murphy  v.  Murphy,  24  Mo.  526. 


133  OBJECTIONS    IN     EXQLUSION     OF    WITNESSES. 

for  the  plaintiff;  but  he  was  not  an  admissible  witness  for  the  defend- 
ant," and  yet  where  distinct  cognizances  were  made  under  different 
parties,  not  appearing  to  be  connected  in  interest,  and  the  issue  on 
one  cognizance  was  abandoned  by  the  defendant  at  the  trial,  the 
person  under  whom  that  cognizance  was  made,  if  he  did  not  employ 
the  attorney,  was  a  competent  witness  for  the  defence."  But,  since 
the  passing  of  this  statute,  in  a  case  where  the  defendants  made  cog- 
nizance, first  as  bailiffs  to  J.  and  F.  M'Gowan,  and  secondly,  as 
bailiffs  to  J.  M'Gowan  alone,  and  no  evidence  was  offered  in  support 
of  the  first  cognizance,  and  it  was  proposed  to  abandon  it  and  call  F. 
M'Gowan  in  support  of  the  second  to  prove  a  fact  alleged  therein, 
and  not  in  issue  upon  the  first,  it  was  held  under  this  clause  by  Alder- 
son,  B.,  (after  consulting  Lord  Denman,  C.  J.,)  that  the  evidence 
of  F.  M'Gowan  was  not  admissible.^  And  where  the  taking  was  jus- 
tified in  several  cognizances  under  different  persons,  and  one  of  them 
was  admitted  by  Wilde,  C.  J.,**  to  prove  matters  distinct  from  and  in- 
dependent of  the  subject-matter  of  the  cognizance  made  under  him  ; 
the  Court  of  Common  Pleas  afterwards  expressed  a  clear  opinion  that 
his  evidence  was  inadmissible,  while  the  cognizance  made  under  him 
remained  '"upon  the  record  as  part  of  the  effective  title 
L         -^    claimed  on  the  part  of  the  defendants." 

4thly.  "Any  person  in  whose  immediate  and  individual  behalf  any 
action  may  be  brought  or  defended  either  wholly  or  in  part."  This 
was  the  great  exception  in  this  enactment,  and  from  the  generality  of 
its  terms  and  the  consequent  wideness  of  its  operation  it  led  to  much 
discussion.  The  only  ground  on  which  persons  in  the  predicament 
pointed  out  in  this  exception  were  inadmissible  as  witnesses  before 
Lord  Denman  s  Act  was,  that  they  were  interested  on  the  side  on 
which  their  testimony  was  proposal  to  be  given, ^  and  under  the 
operation  of  this  statute,  that  circumstance  was  still  the  only  ground 
of  exclusion.  If,  therefore,  they  were  called  adversely  to  their  own 
interest,  or  their  interest  when  they  were  called  to  support  it  was  re- 
moved by  means  of  a  release,  or  the  objection  could  be  met  by  the 
provisions  of  the  statute  3  &  4  Will.  IV.  c.  42,  they  became  admissible. 

In  treating  upon  this  branch  of  the  enactment  it  will  perhaps  be 

°  Golding  v.  Nias,  5  Esp.  272 ;   Upton  v.  Curtis,  1  IJing.  (8  E.  C.  L.  R.)  210. 
"  Khuj  V.  Baker,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  333. 

I"  Girdleslone  v.  McGowan,  1  Car.  &  K.  (47  E.  C.  L,  R.)  702.     But  in  this  case 
King  v.  Baker,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  333,  was  not  referred  to. 
0  Walker  v.  Giles,  2  Car.  &  K.  (01  E.  C.  L.  R.)  671. 
'  Walker  v.  Giles  et  al.,  0  C.  B.  (60  E.  C.  L.  R.)  662. 
•  Ah  to  persons  who  were  inadmissible  on  this  j^round  before,  see  ante,  p.  118. 


INTEREST — 6    &    7    VICT.    C.    85 — EXCEPTIONS    3,    4.      134 

better  to  consider  the  effect  of  the  word  "immediate,"  as  distinct 
from  "individual"  in  the  first  phice,  remembering  at  the  same  time 
that  both  of  these  terms  must  liave  been  satisfied  in  order  to  exclude 
the  witness,  and  if  the  proceeding  were  not  brought  or  defended  on 
his  immediate,  as  Avell  as  his  individual  behalf  the  witness  was  com- 
petent. Nkw  although  there  was  no  presumption  in  favor  of  inca- 
pacity, yet  an  action  will  be  presumed  to  be  brought  on  behalf  of  the 
party  who  appears  to  be  principally  interested.'  Thus  an  action  by 
a  broker,  upon  a  contract  made  by  him  for  his  principal,  to  recover 
the  sum  due  under  that  contract,  though  it  include  the  broker's  com- 
mission is  evidently  an  action  brought  on  the  immediate  *be- 
half  of  the  principal ;   and  since  the  passing  of  the  statute,    ^  J 

Avhere  the  party  in  whose  name  the  action  was  brought,  and  the 
witness  bore  the  relation  of  trustee  and  cestui  que  trust  to  each  other 
in  respect  of  the  matter  sought  to  be  recovered  in  the  action,  the 
latter  Avas  deemed  to  be  a  person  in  whose  immediate  behalf  the  action 
Avas  brouglit,  and  inadmissible  as  a  witness."  So,  a  creditor  of  a 
bankrupt  was  held  (by  Wilde,  C.  J.)  inadmissible  as  a  witness  for  the 
assignees,  in  an  action  by  them  to  recover  money  paid  as  a  fraudulent 
preference,''  though  a  contrary  opinion  was  expressed  upon  this  ques- 
tion by  Pollock,  C.  B.^  And  where  the  action  was  brought  upon  a 
promissory  note  made  to  the  plaintiff,  a  member  of  a  joint-stock  com- 
pany, for  the  benefit  of  the  company,  another  member  of  the  company 
was  considered  by  Parke  and  Alderson,  BB.,  to  be  incompetent  for 
the  plaintiff.' 

In  Hill  V.  ICitchmg,^  which  was  an  action  by  a  ship-broker 
against  a  ship-owner,  for  his  commission  in  procuring  a  charter  for 
the  latter,  Cramond,  a  witness,  stated  that  the  defendant  applied  to 
him  to  procure  a  freight  for  his  vessel,  whereupon  he  introduced  him 
to  the  plaintiff;  that  the  negotiation  took  pUice  at  his  office,  but  he 
had  nothing  to  do  with  it,  and  had  no  claim  against  the  defendant; 
but  pursuant  to  agreement  with  the  plaintiff  and  to  the  custom,  he 
should  receive  half  the  commission  from  the  plaintiff,  if  he  recovered. 
He  was  held  to  be  a  competent  Avitness,  not  being  within  the  excepted 
class.      "If  it  had  appeared,"  said  Tindal,  C.  J.,  "that  the  plaintiff 

'  Bell  V.  Smith,  5  B.  &  C.  (]  1  E.  C.  L.  R.)  188. 
"  Wade  V.  Simeon,  2  C.  B.  (52  E.  C.  L.  R.)  342. 
'  Belcher  v.  Brake,  2  Car.  &  K.  (61  E.  C.  L.  R.)  G58. 

y  Johnson  v.  Graham,  2  Car.  &  K.  (61   E.  C.  L.  R.)  808  ;  and  see  Hart  v. 
Stephens,  6  Q.  B.  (51  E.  C.  L.  R.)  937. 
'  Clark  \.  Bell,  12  Jur.  421. 
»  3  C.  B.  (54  E.  C.  L.  R.)  299. 


135  OBJECTIONS     IN    EXCLUSION     OF    WITNESSES. 

had  made  over  to  Cramond  a  moiety  of  the  commission,  then  I  shouM 
have  said  that  Cramond  was  a  person  in  whose  immediate  and  indi- 

^  ^  ^  vidual  behalf  the  action  was  in  *nart  brought.  But  that  is 
r  13G1 

•-  -^  not  so.  Cramond,  though  he  claims  a  moiety  of  the  commis- 
sion under  a  separate  and  distinct  agreement  with  the  plaintiff,  has  no 
right  to  lay  his  hand  upon  any  portion  of  the  money  to  be  recovered 
in  this  action,  and  there  was  no  evidence  to  show  that  he  was  any 
party  to  the  bringing  of  the  action." 

The  rule  deducible  from  these  cases  and  observations  would  appear 
to  have  been,  that  a  witness  who  was  so  interested  in  the  thing  sued 
for,  whether  goods  or  money,  that  when  recovered  by  the  party  for 
whom  he  appeared,  it  would  be  his  property,  or  if  recovered  from 
the  party  for  whom  he  appeared,  he  (the  witness)  would  be  the  loser 
of  it  either  wholly  or  in  part ;  or  a  witness  who  had  set  the  suit  in 
motion,  or  actually  defended  it  by  employing  the  attorney,  being 
liable  to  him  for  the  costs,^  was  a  person  in  whose  immediate  and 
individual  behalf  the  action  was  brought  or  defended  within  this  ex- 
ception. 

On  the  construction  of  this  exception  it  was  also  decided,  that 
creditors  of  a  bankrupt  were  admissible  witnesses  for  the  defendant 
in  an  action  brought  by  the  bankrupt  against  his  assignee,  to  try 
the  validity  of  the  fiat ;  and  it  was  considered  immaterial  whether 
they  had,  or  had  not  proved  their  debts."  And  in  an  action  by  the 
assignee,  the  bankrupt  himself  was  competent  to  prove  the  petition- 
ing creditor's  debt,''  or  the  act  of  bankruptcy,  or  any  other  matter 
to  support  the  fiat.^  For  the  same  reason,  a  legatee  of  money  charged 
on  land  was  admissible  as  a  witness,  to  support  the  will  giving  that 
land  to  the  defendant,  in  an  ejectment  brought  for  the  same  land 
r-  ^  r.—,    under  another  will  devisino-  it  otherwise.*     So  the  possibility 

r*i37i  ... 

■-  -■  *of  benefit  did  not  exclude  a  husband  from  giving  evidence 
for  the  administrator  of  his  wife,  in  an  action  brought  by  him  on  a 
promissory  note  given  to  the  wife  while  sole,  the  husband  having  no 
interest  in  the  amount  recovered  till  his  wife's  debts,  contracted  while 

''  Walter  v.  Thompson,  cor.  Patterson,  .J.,  Oxford  Summer  Assizes,  1845 ;  see 
note  to  Bent  v.  Baker,  2  Smith  L.  C,  3d  ed.  54. 

<=  Coluynbine  v.  Fenhall,  19  L.  J.,  N.  S..  Q.  B.  302.  And  so  a  petitioning 
creditor  was  held  a  good  witness  to  support  the  fiat :  Johnson  v.  Graham,  2  C. 
&K.  (01  E.  C.  L.  R.)  808. 

«»  Groom  v.  Watson,  19  L.  J.,  N.  S.,  C.  P.  364. 

"  Udall  V.  Walton,  14  M.  &  W.  254. 

f  Doe  dem  Bengo  v.  Nicholls,  18  L.  J.,  N.  S.,  Q.  B.  81. 


INTEREST — 6    &    7    VICT.    C.    85 — EXCEPTION    5.  137 

unmarried,  were  paid.^  In  an  action  likewise  of  trover^  for  two  pro- 
missory notes,  in  which  the  question  was,  whether  they  were  the  pro- 
perty of  the  plaintiff  or  of  one  Mytton,  and  the  defendant  asserted 
that  they  were  the  property  of  Mytton,  and  were  improperly  in  the 
possession  of  the  plaintiff,  whereupon  the  defendant,  as  Mytton's 
agent,  took  them  from  him  ;  Mytton  being  called  as  a  witness  for  the 
defendant  stated  on  the  voire  dire  that  he  had  not  indemnified  the  de- 
fendant, and  had  nothing  to  do  with  the  action.  It  Avas  thereupon 
objected  that  he  was  incompetent,  but  his  evidence  was  held  by  the 
court  to  have  been  rightly  admitted. 

A  mere  liability  also  to  answer  over  against  the  consequences  of 
an  action,  as  for  instance  that  of  a  sheriff's  officer,  for  whose  miscon- 
duct in  not  arresting  when  he  had  an  opportunity  an  action  was 
brought  against  the  sheriff,  did  not  render  such  a  witness  a  person  in 
whose  immediate  or  individual  behalf  the  action  was  defended  ;^  nor 
did  an  engagement  to  pay  half  the  costs  of  defending  the  action,  the 
witness  not  being  the  defendant's  partner,  nor  having  retained  the 
attorney. "^ 

But,  in  order  to  exclude  the  witness,  the  action  must  have  been 
brought  or  defended  not  only  in  his  immediate  but  also  in  his  indi- 
vidual behalf,  either  wholly  or  in  part.  Looking  to  the  construc- 
tion put  upon  this  word  in  the  former  clause'  it  would  appear  to  have 
a  similar  operation  *in  this  ;  and  that  where  an  action  was 

r*i.s8n 

brought  for  or  against  a  corporation  in  its  aggregate  name,  ■-  '  -^ 
though  the  members  might  be  entitled  to  the  benefit  of  the  thing 
sought  to  be  recovered  in  their  corporate  or  collective  capacity,  or 
might  be  so  subjected  to  the  loss  which  an  adverse  verdict  might  en- 
tail, yet  the  members  were  competent  as  Avitnesses.  The  reason  for 
this  is  obvious  when  we  reflect  on  the  slight  interest  which  individuals 
so  situated  had  in  the  result. 

5thly.  "The  husband  or  wife  of  such  persons  respectively." 
This  is  the  last  exception,  and  refers  to  the  whole  of  the  other  ex- 
ceptions. 

8  Hart  V.  Stephens,  6  Q.  B.  (51  E.  C.  L.  R.)  937. 

"  Eearne  v.  Turner,  2  C.  B.  (52  E.  0.  L.  R.)  535. 

*  Wilson  V.  Macjnay,  1  Car.  &  K.  (47  E.  C.  L.  R.)  291  ;  Wheeler  v.  Senior,  1 
Car.  &  K.  (47  E.  C.  L.  R.)  293  ;  per  Wierhtman,  J.  Before  the  recent  statute 
he  would  certainly  have  been  inadmissible :  Groom  v.  Bradley,  8  C.  &  P.  (34 
E.  C.  L.  R.)  500 ;  2)er  Parke,  B. 

^  Sage  v.  Robinson,  3  Ex,  142. 

^  See  per  Parke,  B.,  Sinclair  v.  Sinclair,  13  M.  &  W.  640  ;  and  see  ante,  p. 
131,  and  the  cases  there  cited. 
10 


138  OBJECTIONS     IN    EXCLUSION     OF     WITNESSES. 

The  law  lias  ever  regarded  the  interest  of  husband  and  wife  as 
so  identical,  that  where  the  one  was  incapacitated"  on  the  score  of 
interest,  the  other  could  not  give  evidence.  Thus,  in  an  action 
against  the  sheriff  to  recover  the  value  of  goods  which  had  been 
sold  by  him  under  an  execution  against  the  husband,  brought  bj  the 
trustee  of  a  marriage  settlement  for  the  sole  and  separate  use  of  the 
wife,  the  husband  was  held  to  be  incompetent  as  a  witness  for  the 
plaintiff  to  show  that  the  goods  had  been  conveyed  to  the  plaintif!' 
upon  that  trust."  So,  when  a  woman,  against  whom  an  action  of  debt 
was  brought,  pleaded  coverture,  her  husband  was  held  to  be  an  incom- 
petent witness  to  support  the  plea."  And,  in  an  action  of  trespass 
against  two  persons  fur  seizing  the  plaintiff's  goods,  the  wife  of  one 
of  the  defendants  was  held  to  be  incompetent  as  a  witness  for  the 
other  to  prove  that  he  never  authorized  the  seizure,  and  this,  too, 
although  the  case  as  against  her  husband  was  clearly  proved.     Being 

sworn  to  speak  the  whole  truth,  she  *could  not  be  prevented 

r*l3*^1  •  •  •  • 

L     '  ^-^    from  stating  facts  which   might  tend  to  acquit  her  husband, 

or  to  relieve  him.^  In  a  criminal  case,  also,  a  wife  could  not  be  ex- 
amined for  another  defendant  upon  a  charge  against  him  and  her 
husband,  for  example,  of  conspiracy,  where  the  acquittal  of  the  one 
might  enure  to  the  discharge  of  the  other  defendant. 'i  And  it  has 
even  been  held,  before  the  more  recent  act,  that  the  wife  of  one  pri- 
soner could  not  be  called  as  a  witness  to  prove  an  alibi  for  another 
prisoner  on  an  indictment  against  both  for  burglary,  inasmuch  as 
her  evidence,  by  impugning  the  evidence  of  a  witness  who  identified 
both  prisoners,  would  materially  impair  the  weight  of  his  evidence 
generally  with  the  jury ;  but  there  seems  to  be  a  stronger  reason 
than  this,  viz.,  that  she  would  be  sworn  to  speak  the  wJiole  truth,  and 
could  not  therefore  be  prevented  from  testifying  in  her  husband's  be- 
half. "■  The  effect  of  this  enactment  was  to  render  a  husband  or  wife 
competent,  though  interested  in  the  result,  in  all  cases  where  the  in- 
terest of  the  husband  or  wife  was  not  of  the  class  mentioned  in  the 
prior  exceptions.^ 

™  B.  N.  P.  2S0.  The  rule  that  the  husband  and  wife  shall  not  bear  evidence 
a<;ainst  each  other,  which  depends  upon  different  considerations,  together  with 
the  exception  to  it,  has  been  already  adverted  to. 

°  Davis  V.  Dinwoodi/,  4  T.  R.  678. 

»  Woodyate  v.  Potts,  2  C.  &  K.  (61  E.  C.  L.  II.)  457. 

p  JfaiHcesicorth  v.  Showier,  12  M.  &  W.  45.  i  E.  v.  Locker,  5  Esp.  107. 

'  Hex  V.  Smith,  1  Mood.  C.  C.  289  •,  but  see  E.  v.  Sills,  1  C.  &  K.  (47  E.  C.  L. 
R.)  404,  contra. 

'  'i"h(;  ruh;  ])ef'or(!  the  statute  was  not  confined  to  the  cases  when  the  husband 
or  wife  is  a  party,  but  wherever  cither  would  be  incompetent  as  an  interested 


INTEREST — 6    &    7    VICT.    C.     85 — EXCEPTION    5.  139 

This  exception  becomes  most  important  for  consideration  with  a 
view  to  the  last  enactment  upon   this  subject,  which  we  shall  now 

witness  the  other  is  so  likewise  :  Griffin  v.  Brown,  2  Pick.  304 ;  Leggett  v.  Boyd, 
3  Wend.  37<) ;  Hall  v.  Dargan,  4  Ala.  696  ;  Seigling  v.  Main,  1  McMull.  252 ; 
Abbott  V.  Clarke,  19  Vt.  444;  Edwards  v.  Fitts,  3  Strobh.  140;  Bisbing  v. 
Graham,  2  Ilarr.  14;  Piper  v.  Lodge,  16  S.  &  R.  214  ;  Carpenter  v.  Moon,  43 
Vt.  392 ;  Young  v.  Gilman,  46  N.  H.  484 ;  Carpenter  v.  White,  46  Barb.  291  ; 
Cull  V.  Herwig,  18  La.  Ann.  315;  Leach  v.  Fowler'' s  devisees,  22  Ark.  143; 
Marshman  v.  Conklin,  2  Green  282;  Cramer  v.  Bedford,  Ibid.  367  ;  Galwny  v. 
Fullerton,  Ibid.  389  ;  Woinach  v.  McQuarry,  28  Ind.  103  ;  Farrell  v.  Ledwell,  21 
Wis.  182;  A'eZZy  v.  Drew,  12  Allen  107. 

A  husband  and  wife  jointly  sued  or  suing  may  each  testify  in  his  or  her  own 
behalf  only  :  Albaugh  v.  James,  29  Ind.  398  ;  Loioe  v.  Hughes,  Ibid.  399  ;  Crane 
V.  BucJianan,  Ibid.  570.  A  plaintiff's  wife  is  not  a  competent  witness  for  the 
defendant :  Blain  v.  Fatterson,  47  N.  H.  523.  But  see  Dyer  v.  Homer,  22  Pick. 
253,  where  it  was  decided  that  although  the  effect  of  a  husband's  testimony 
may  be  to  increase  a  fund  given  to  trustees  for  the  benefit  of  his  wife  and  the 
income  of  which  is  to  be  paid  over  to  her  for  her  sole  use,  and  upon  her  own 
receipts  under  her  hand,  he  is  not  therefore  an  incompetent  witness,  his  interest 
being  contingent.  Contra,  that  the  husband  cannot  be  a  witness  either  for  or 
against  his  wife,  in  a  suit  concerning  her  separate  estate :  Warne  v.  Dyott,  2 
Edw.  Ch.  Rep.  497  ;  Hosach  v.  Rogers,  8  Paige  229 ;  Burrell  v.  Bull,  3  Sandf. 
Ch.  15  ;  Hodges  v.  Bank,  13  Ala.  455  ;  Footman  v.  Fendergrass,  2  Strobh.  Eq. 
317;  Mayrant  v.  Guignard,  3  Strobh.  Eq.  112;  Williamson  v.  Morton,  2  Md. 
Ch.  94 ;  Snyder  v.  Snyder,  6  Binn.  483.  Although  the  husband  might  be  com- 
petent as  called  to  testify  against  his  own  interest,  and  be  compellable  to  do  so, 
yet  the  wife  will  not  be  competent,  and  this  is  peculiarly  on  the  ground  of 
policy  to  prevent  that  discord  and  dissension  which  would  otherwise  be  likely 
to  arise  between  the  parties.  Therefore  if  one  of  two  or  more  defendants  in 
equity  suffers  the  bill  be  taken  pro  confcsso,  and  other  defendants  answer,  the 
wife  of  the  defaulted  defendant  is  not  ev  good  witness  for  the  complainant:  Spar- 
hawk  V.  Buell,  9  Vt.  41  ;  see  Hadley  v.  Chapin,  11  Paige  245.  A  wife  may  be 
admitted  as  a  witness  against  her  husband  in  an  indictment  for  a  criminal  offence 
committed  by  him  against  her :  State  v.  Davis,  3  Brev.  3.  But  only  when  it  is 
an  injury  to  her  person,  not  when  it  is  to  wrong  her  in  her  property,  as  by  sub- 
ornation of  perjury  :  Feople  v.  Carpenter,  9  Barb.  S.  C.  580  ;  State  v.  Dyer,  59 
Me.  303;  Comm.  v.  Reid,  1  Campb.  182;  Feople  v.  Northrop,  50  Barb.  147. 
The  wife  is  competent  to  prove  desertion  by  her  husband  :  State  v.  Brown,  67 
N.  C.  470.  The  second  wife  is  a  competent  witness  on  the  trial  of  her  husband 
for  bigamy  or  unlawful  cohabitation  :  Finney  v.  State,  3  Head  544.  As  to  com- 
petency of  husband  and  wife  in  criminal  cases,  see  State  v.  Moulton,  48  N. 
H.  485  ;  Farsons  v.  Feople,  21  Mich.  509.  The  wife  of  a  joint  defendant  not  on 
trial  is  competent  for  the  others  :  State  v.  Drawdy,  14  Rich.  87.  The  wife  of  an 
accessory  to  a  battery  is  competent  for  the  principal.  The  legal  effect  of  an 
acquittal  of  one  of  the  indicted  parties  is  not  an  acquittal  of  the  other:  State  v. 
Mooney,  64  N.  C.  54.  When  an  accomplice  and  his  wife  are  witnesses  for  the 
prosecution  in  a  criminal  trial,  the  -wife  is  competent  to  prove  any  independent 
facts   not  sworn   to   by   her  husband   and   not   forming  any   part  of  his  acts. 


139  OBJECTIONS    IN    EXCLUSION     OF    WITNESSES. 

proceed  to  discuss;  and  as  it  defines  the  persons  falling  within  it  by 
reference  to  the  preceding  exceptions,  it  has  rendered  it  necessary 

although  those  facts  fasten  a  guilty  knowledge  on  the  defendant :  United  States 
V.  Horn,  5  Blatchf.  102.  When  trials  on  an  indictment  are  separate  the  wife 
may  testify  against  any  one  other  than  her  husband  ;  except  in  cases  where  the 
acquittal  of  one  defendant  works  the  acquittal  of  the  rest,  as  in  conspiracy : 
United  States  v.  Addate,  6  Blatchf.  76.  So  she  is  a  competent  witness  for  him 
to  disprove  the  charge  :  State  v.  Neill,  6  Ala.  685.  The  husband  having  been 
examined  for  the  State,  the  wife  is  a  competent  witness  on  the  other  side,  to 
show  that  the  husband  testified  under  a  bias  against  the  defendant  but  not  to 
contradict  him :  Cornelius  v.  State,  1  Engl.  782.  The  wife  who  keeps  her 
husband's  books  is  a  competent  witness  to  prove  his  book  of  original  entries: 
Littlejield  v.  Rice,  10  Mete.  287.  The  principle  of  necessity  which  enables  a 
party  to  prove  the  contents  of  a  lost  trunk  applies  to  the  wife,  and  renders  her 
also  a  competent  witness  in  such  a  case :  McGill  v.  Bowand,  3  Barr  451. 

After  a  divorce,  or  death,  neither  will  be  permitted  to  testify  against  the 
other  in  respect  to  transactions  which  occurred  during  the  coverture:  Barnes  v. 
Camaclc,  1  Barb.  392;  Cook  v.  Grange,  18  Ohio  520  ;  Gaskill  v.  King,  12  Ired. 
211  ;  Bradford  v.  Williams,  2  Md.  Ch.  1  ;  Hay  v.  Hay,  3  Rich.  Eq.  384 ;  Crook 
V.  Henry,  25  Wis.  569  ;  Rea  v.  Tucker,  51  111.  110.  A  wife  after  the  death  of 
her  husband  is  competent  to  prove  facts  coming  to  her  knowledge  from  other 
sources  than  by  means  of  her  situation  as  wife,  notwithstanding  they  relate  to 
the  transactions  of  her  husband  :  Wells  v.  Tucker,  3  Binn.  366 ;  Cornell  v. 
Vanarisdalen,  4  Barr  374;  Chambers  v.  Spencer,  5  Watts  404.  As  a  general 
rule  the  wife  can  be  a  witness  when  the  husband  can ;  thus  she  is  as  competent 
as  he  to  testify  to  the  contents  of  a  lost  trunk  :  Illinois  Railroad  Co.  v.  Taylor, 
323  ;  Same  v,  Copeland,  Ibid.  332.  In  the  trial  of  a  complaint  against  a  man 
for  an  assault  and  battery  upon  his  wife,  she  is  a  competent  witness  in  his  favor: 
Comm.  v.  Murjjhy,  4  Allen  491.  Communications  between  husband  and  wife 
are  privileged,  even  after  the  husband's  death  :  Gray  v.  Cole,  5  Ilarring.  418  ; 
Lingo  v.  State,  29  Ga.  470  ;  Walker  v.  Sanborn,  46  Me.  470.  The  testimony  of 
a  wife,  the  only  tendency  of  which  is  to  discredit  her  husband,  is  not  admis- 
sible:  Keaton  v.  McGwier,  24  Ga.  217.  A  husband  cannot,  in  a  collateral  pro- 
ceeding, give  testimony  which  directly  charges  the  wife  with  an  offence,  although 
she  has  been  tried  and  acquitted  of  it :  State  v.  Wilson,  2  Vroom  77.  The  pre- 
sumption of  marriage  arising  from  the  fact  of  cohabitation  is  not  such  as  to 
render  the  woman  incompetent  on  the  man's  trial  for  crime  :  Hill  v.  State,  41 
Ga.  484 ;  Dennis  v.  Crittenden,  42  N.  Y.  542 ;  Flanagin  v.  State,  25  Ark.  92. 
When  the  husband  and  wife  are  competent  witnesses  for  but  not  against  each 
other  in  criminal  cases,  when  the  wife  is  examined  on  behalf  of  her  husband 
hhe  cannot  be  cross-examined  :  Griffin  v.  State,  32  Tex.  164 ;  contra.  Creamer  v. 
State,  34  Tex.  173.  As  to  when  husband  and  wife  are  competent  for  each 
otlier  under  statute,  see  Robison  v.  Robison,  44  Ala.  227  ;  Moivler  v.  Harding, 
.,.',  Ind,  176;  Blake  \.  Lord,  82  Mass.  387 ;  Pea.vZee  v.  ifcXooji,  82  Mass.  488  ; 
firew'v.  Matthews,  101  Ibid.  64;  Morony  v.  O^Laughlin,  102  Ibid.  184;  Traxton 
V.  Hawes,  Ibid.  533;  Baxter  v.  Boston  R.  R.  Co.,  Ibid.  383;  Bunker  v.  Bennett, 
1U3  Ibid.  516;  Yeager  v.  Weaver,  14  P.  F.  Smith  425;  Musser  v.  Gardner,  16 
Ibid.  212;   Roivlcy  v.  Mrlfiigh,  Ibid.   269;   Lilrhjidd  v.  Merritt,  102  Mass.  520; 


INTEREST — 6    &    7    VICT.    C.    85 — EXCEPTION    5.  139 

to  afford  an  explanation  of  the  whole  of  them,  which  might  otherwise 
have  been  partially  dispensed  with. 

Shortly  after  the  passing  of  Lord  Denmans  Act,  the  statute  for 
the  establishment  of  County  Courts,  which  superseded  a  large  num- 
ber of  minor  tribunals  where  the  objection  to  the  admissibility  of  wit- 
nesses on  the  score  of  interest  was  not  allowed  to  prevail,  was  pro- 
mulgated;   and  by  this  it  was  provided,  that  in  those  new  Courts, 

not  onlv  the  parties,  but  their  wives  and  all  other  persons, 

...  .  r  ?    r*^^ 

*should  be  witnesses  on  either  side.^     This  paved  the  way    ^         J 

for  the  introduction  by  Lord  Brougham  of  the  last  and  most  sweep- 
ing measure  upon  the  subject  of  the  inadmissibility  of  witnesses  on 
the  ground  of  interest,  viz.,  the  recent  "Act  to  amend  the  Law  of 
Evidence."'  This  statute,  after  reciting  that  "whereas  it  is  expe- 
dient to  amend  the  law  of  evidence  in  divers  particulars,"  enacts" 
"  that  so  much  of  sect.  1  of  the  Act  of  the  6th  and  7th  years  of 
Her  present  Majesty,  chap.  85,  as  provides  that  the  said  Act  shall 
not  render  competent  any  party  to  any  suit,  action,  or  proceeding, 
individually  named  in  the  record,  or  any  lessor  of  the  plaintiiF,  or 
tenant  of  premises  sought  to  be  recovered  in  ejectment,  or  the  land- 
lord or  other  person  in  whose  right  any  defendant  in  replevin  may 
make  cognizance,  or  any  person  in  whose  immediate  and  individual 
behalf  any  action  may  be  brought  or  defended,  either  wholly  or  in 
part,  is  hereby  repealed."  It  then  proceeds^  to  enact  that  "on  the 
trial  of  any  issue  joined  or  of  any  matter  or  question,  or  on  any 
inquiry  arising  in  any  suit,  action,  or  other  proceeding  in  any  court 
of  justice ;  or  before  any  person  having  by  law,  or  by  consent  of  par- 
ties, authority  to  hear,  receive  and  examine  evidence,  the  parties 
thereto,  and  the  persons  on  whose  behalf  any  such  suit,  action  or  other 
proceeding  may  be  brought  or  defended,  shall,  except  as  hereinafter 
excepted,  be  competent  and  compellable  to  give  evidence,  either  viva 
voce  or  by  deposition  according  to  the  practice  of  the  court,  on  behalf 
of  either  or  any  of  the  parties  to  the  said  suit,  action  or  other  pro- 

'  9  &  10  Vict.  c.  95,  s.  83.  '  14  &  15  Vict.  c.  90. 

"  Sect.  1.  ^  Sect.  2. 

Baxter  \.  Knowles,  12  Allen  114;  Bliss  v.  Franklin,  13  Allen  244;  Bush  v. 
Savage,  Ibid.  40S ;  Phares  v.  Barbour,  49  111.  370;  Packard  v.  Reynolds,  100 
Mass.  1 53.  Under  statutes :  Jackson  v.  Jackson,  40  Ga.  1 50 ;  Mclntyre  v.  Meldrom, 
Ibid.  490;  Rice  v.  Keith,  63  N.  C.  319;  Manhij  v.  Eakin,  15  Rich.  (Law)  324; 
Kyle  V.  Frost,  29  Ind.  382;  Magness  v.  Walker,  26  Ark.  470;  Matteson  v.  New 
York  R.  R.  Co.,  62  Barb.  364;  Fugate  v.  Pierce,  49  Mo.  441 ;  Bast  v.  Anspach, 
1  Camp.  25 ;  Jones  v.  Simpson,  59  Me.  180 ;  Steen  v.  State,  20  Ohio  St.  333. 


140  OBJECTIONS    IN    EXCLUSION     OF    WITNESSES. 

ceeding."  By  way  of  exception,  however,  to  these  general  provisions, 
it  is  declared  that  "nothing  herein  contained  shall  render  any  person 
who''  in  any  criminal  proceeding  is  charged  with  the  commission  of  any 
indictable  offence,  or  any  offence  punishable  on  summary  *con- 
'-  -•  viction,  competent  or  compellable  to  give  evidence  for  or 
against  himself  or  herself,  or  shall  render  any  person  compelhible  to 
answer  any  question  tending  to  criminate  himself  or  herself;  or  shall 
in  any  criminal  proceeding  render  any  husband  competent  or  compel- 
lable to  give  evidence  for  or  against  his  wife,  or  any  wife  competent 
or  compellable  to  give  evidence  for  or  against  her  husband."  And 
also"  that  "nothing  herein  contained  shall  apply  to  any  action,  suit, 
proceeding,  or  bill,  in  any  Court  of  Common  Law,  or  in  any  Ecclesi- 
astical Court,  or  in  either  House  of  Parliament,  instituted  in  conse- 
quence of  adultery,  or  to  any  action  for  breach  of  promise  of 
marriage." 

By  the  first  section  therefore  of  this  enactment  it  will  be  found,  on 
reference  to  Lord  Denmans  Act,  that  the  whole  of  the  exceptions 
contained  in  it,  save  the  last  which  related  to  the  husbands  and 
wives  of  the  parties  mentioned  in  all  the  exceptions,  was  repealed, 
and  the  general  enabling  clause  which  that  Act  contained  would 
have  prevailed.  It  therefore  became  requisite  to  limit  its  opera- 
tion by  the  two  last  sections  above  quoted ;  and  in  order  to  put 
an  end  to  all  questions,  as  well  to  render  parties  compellable  by 
their  adversaries  or  other  parties  to  give  evidence,  the  second  sec- 
tion seems  to  have  been  introduced.  The  exception  therefore  in 
the  prior  enactment  as  to  the  evidence  of  husbands  and  wives  in  the 
instances  mentioned  in  it,  and  the  two  clauses  above  quoted  from  the 
last  statute,  are  the  only  remnants  of  the  ancient  rule  upon  this  sub- 
ject ;  and  all  other  persons  are  now  admissible  as  witnesses  without 
reference  to  any  interest  they  may  possess.  With  regard  to  those 
two  clauses,  the  reasons  for  excluding  the  persons  falling  within  them 
are  so  obvious,  and  their  language  is  so  explicit,  as  to  render  further 
explanation  superfluous  ;  but,  with  regard  to  the  other  exception, 
there  has  already  been  considerable  discussion,  and  some  difference  of 
opinion." 

*Whether  the   exclusion  of  the  evidence  of  the  Avife   at 
r*1421 
L        ""J    common  law  depended  upon  the  identity  of  interest  between 

h(;r  and  her  husband,  or  upon  the  interest  which  society  has   to  pre- 

tjcrvc  the  peace  and  confidence  of  families,  has  been  strongly  disputed. 

y  Sect.  ?>.  ^  Sect.  4. 

"  See  Slajddon  v.  Croft,  10  Jur.  408. 


INTEREST — MODE    AND     TIME     OF     OBJECTION.  142 

Whichever  be  the  foundation  of  the  rule,  the  legislature  seems  to  have 
thought  that  the  question  of  the  admissibility  of  the  evidence  of  hus- 
bands and  wives,  for  or  against  one  another,  involved  other  considera- 
tions than  that  of  mere  interest,  and  purposely  to  have  omitted  this 
exception  from  the  repeal  effected  by  the  1st  section.  It  is,  however, 
singular  that,  cither  from  inadvertence  or  for  some  reason  which  it  is 
difficult  to  comprehend  in  the  subsequent  section,  which  provides  that 
parties  and  persons  on  whose  behalf  the  action  is  brought  shall  be 
competent  and  compellable  to  give  evidence,  there  is  no  qualification 
whatever :  and  the  result  is,  that  under  that  provision,  where  the  hus- 
band and  wife  are  parties  to  the  action  or  suit,  they  may  both  give 
evidence.  Thus,  where  goods  were  supplied  to  a  wife  before  mar- 
riage, and  the  husband  and  wife  were  sued  for  the  price,  they  were 
both  allowed  to  give  evidence  for  the  defence.''  But  if  the  case  does 
not  fall  within  that  section,  and  both  the  husband  and  wife  are  not 
parties,  it  has  now  been  decided"  that  in  civil  proceedings  the  excep- 
tion in  Lord  Denmans  Act  prevails,  and  the  old  rule  of  exclusion 
applies,  and  as  expressed  by  Parke,  B.,*^  "  The  wife  is  not  a  competent 
witness  in  a  civil  suit  to  which  her  husband  is  a  party.  She  was  incom- 
petent in  such  cases  by  the  common  law,  and  I  do  not  stop  to  inquire 
whether  that  was  simply  on  the  ground  of  interest  or  of  the  relation- 
ship between  the  parties,  though  the  latter  is  the  reason  usually 
assigned  in  the  books,  and  it  is  clear  that  by  the  recent  Law  of  Evi- 
dence Act,  14  &  15  Vict.  c.  99,  it  was  never  meant  that  the 
*wife  should  be  a  competent  witness  for  or  against  her  bus- 
band."  [''*3] 

If,  however,  the  adversary  do  not  object,  it  w^ould  seem  that  the 
husband  or  wife  might  be  examined,  and  perhaps  the  judge  could  not 
reject  the  evidence;  but  after  the  party  has  once  objected,  it  is  en- 
tirely in  the  discretion  of  the  judge  whether  he  will  allow  the  objec- 
tion to  be  withdrawn.® 

Unless  the  interest  of  the  witness  was  apparent  from  the  record 
itself  or  from  the  admission  of  the  adversary,  it  lay  with  the  party 
making  the  objection  to  establish  it^  to  the  satisfaction  of  the  judge,^ 

•^  Christian  v.  Horwood  et  nx..  cor.  Pollock,  C.  B.,  London  Sittings  after  M. 
T.  1851. 

"  Stapleton  v.  Crafty  16  Jur.  408,  dissentiente,  Erie,  J.  •,  Barhat  v.  AUe7i,  21 
L.  J.,  Ex.  154. 

d  Barbat  v.  Allen,  21  L.  J.,  Ex.  154. 

•  Barb  at  v.  Allen,  snjyra. 

'  Doe  dem.  Norton  v.  Webster,  12  Ad.  &  E.  (40  E.  C.  L.  R.)  442  ;  Banter  v. 
Warre,  1  B.  &  C.  (8  E.  C.  L.  R.)  689. 

^  The  judge  at  nisi prius  is  the  person  to  decide,  both  as  to  the  facts  and  the 


143  OBJECTIONS    IN     EXCLUSION     OF    WITNESSES. 

either  by  the  examination  of  the  witness  on  the  voire  dire  or  by  inde- 
pendent evidence.'' 

Notwithstanding  the  primd  facie  appearance  of  interest  on  the 
part  of  the  witness  on  the  face  of  the  record,  it  was  held  his  evidence 
ought  not  to  be  rejected  without  examining  him  on  the  voire  dire  as 
to  his  real  situation.'     The  witness  might  be  examined  generally  as 

^,^.,^  to  his  situation,  *and  even  as  to  the  contents  of  written 
r  1441  • 

■-  -■  documents  which  were  not  produced  ',^  for  the  party  object- 
ing could  not  know  previously  that  the  witness  would  be  called,  and 
consequently  might  not  be  prepared  with  the  best  evidence  to  estab- 
lish his  objection  ;  and  in  like  manner  his  competency  might  be  re- 
stored by  his  parol  evidence  on  the  voire  dire}  ^  If  the  witness  dis- 
charged himself  on  the  voire  dire,  the  party  who  objected  might  still 
afterwards  support  his  objection  by  evidence;™^  but  in  so  doing  the 

law,  on  a  question  as  to  the  competency  of  a  witness:  Doe  dem.  Norton  v.  Web- 
ster, 12  Ad.  &  E.  (40  E.  C.  L.  R.)  442. 

^  Formerly  it  was  necessary  to  have  the  witness  sworn  on  the  voire  dire,  and 
to  take  the  objection  before  he  was  sworn  in  chief,  but  the  rule  has  been  relaxed 
for  the  sake  of  convenience:  Turner  v.  Pearte,  1  T.  R.  717.  The  witness  may 
be  examined  on  the  voire  dire  in  criminal  as  well  as  civil  cases :  R.  v.  Muscot, 
10  Mod.  192;  see  Lord  Lovafs  case,  18  How.  St.  Tr.  530.  In  E.  v.  Wakefield 
and  others,  2  Lew.  Cr.  C.  279,  on  an  indictment  for  a  conspiracy  to  carry  away 
Miss  Turner  and  marry  her  to  one  of  the  defendants,  on  an  objection  taken  by 
the  defendants  to  the  competency  of  Miss  T.,  on  the  ground  that  she  was 
married  to  one  of  the  defendants,  Hullock,  B.,  held  that  the  proper  course  was 
first  to  examine  Miss  T.  on  the  voire  dire,  and  afterwards  to  adduce  collateral 
evidence. 

*  Bunter  v.  Warre,  1  B.  &  C.  (8  E.  C.  L.  R.)  689  ;  Goodhay  v.  Hendry,  Mood. 
&  M.  (22  E.  C.  L.  R.)  319 ;  Carlile  v.  Ead>j,  1  C.  &  P.  (12  E.  C.  L.  R.)  234; 
lAinnis  V.  Row,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  006  ;  Quarterman  v.  Cox,  8  C.  & 
P.  (34  E.  C.  L.  R.)  97  ;  Harfshorne  v.  Watson,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  477. 

''  R.  v.  Gishiirn,  15  East  57  ;  Howell  v.  Locke,  2  Camp.  14;  Lunnis  v.  Row, 
10  Ad.  &  E.  (37  E.  C.  L.  R.)  606. 

'  R.  V.  Gishurn,  15  East  57  ;  Brockbank  v.  Anderson,  7  M.  &  G.  (49  E.  C.  L. 
R.)  295 ;  and  see  Bolliam  v.  Swinglcr,  1  Esp.  C.  164 ;  Butcher^ s  Company  v, 
Jones,  Ibid.  160. 

™  In  R.  v.  Muscot,  10  Mod.  192,  Parker,  C.  J.,  is  reported  to  have  stated  that 
a  party  has  his  election  to  prove  the  interest  of  the  witness  either  by  examina- 
tion on  the  voire  dire  or  by  evidence,  but  that  he  could  not  do  both :  and  see 
Lord  Lovafs  case,  18  How.  St.  T.  530. 

'  Stebbins  v.  Sackett,  5  Conn.  258  ;  Miller  v.  Marine's  Church,  7  Greenl.  51 ; 
Hays  V.  Richardson,  1  Gill  >t  Jolma.  366  ;  Mayo  v.  Gray,  2  Penna.  837  ;  Fifield 
v.  Smith,  8  SIicp.  383. 

*  But  the  better  opinion  in  tlie  United  States  is  tliat  a  party  putting  a  witness 
on  his  voire  dire  is  bound  by  his  answers  and  cannot  establish  his  incompetency 


INTEREST — MODE    AND     TIME     OF     OBJECTION.  144 

objecting  party  was  bound  by  the  usual  rules  of  evidence,  and  could 
not  inquire  as  to  the  contents  of  a  written  instrument  without  pro- 
ducing it,  or  proving  the  usual  preparatory  steps." 

The  objection  to  competency  ought  properly  to  be  taken  in  the 
first  instance,  previously  to  an  examination  in  chief;"  where  it  is  dis- 
covered incidentally  in  the  course  of  the  cause  that  the  witness  is  in- 
admissible, his  evidence  will  be  struck  out,  although  no  objection  has 

°  Hoicell  V.  ioc/i-e,  2  Camp,  14. 

°  Harishorne  v.  Wihon,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  477.  The  ancient  doc- 
trine on  this  head  was  so  strict,  that  if  a  witnes  were  once  even  sworn  in  chief 
he  could  not  afterwards  be  objected  to  on  the  ground  of  interest;  but  this  rule 
has  been  relaxed  ;  see  Jacobs  v.  Laborn,  infra  note.'' 

aliunde:  and  vice  versa,  if  he  fails  in  the  Tproo? aliunde,  he  cannot  resort  to  the 
examination  on  the  voire  dire.  It  is  however  always  op,en  to  the  party  to  adduce 
evidence  of  interest  in  the  witness  with  a  view  to  impeaching  his  credibility 
with  the  jury:  Mifflin  v.  Bingham,  1  Dall.  272;  Mallet  v.  Mallet,  1  Root  501  ; 
McAllister  v.  Williams,  1  Overt.  107,  119;  Bridge  v.  Wellington,  1  Mass.  219; 
Chance  v.  Hine,  6  Conn.  231  ;  Dorr  v.  Osgood,  2  Tyler  28  ;  Bisbee  v.  Hall,  3 
Ilamm.  449;  Welden  v.  Buck,  Anth.  9;  Walker  v.  Sawyer,  13  N.  H.  191; 
Schnader  v.  Schnader,  2  Cas.  384.  Contra,  Stebbins  v.  Sackett,  5  Conn.  258. 
A  witness,  who  is  objected  to  because  of  interest,  may  be  examined  on  his  voire 
dire  or  his  interest  may  be  shown  by  other  witnesses,  but  resort  cannot  be  had 
to  both  sources;  nor  can  the  witness  objected  to  be  called  to  contradict  those 
who  have  testified  to  his  disqualification :  Diversy  v.  Will,  28  111.  216  ;  Young  v. 
Cook,  15  La.  Ann.  126.  Declarations  of  a  witness  before  he  is  called  do  not 
disqualify  him.  The  interest  of  a  witness  in  the  event  of  the  suit  should  be 
established  on  his  voire  dire  or  by  other  testimony :  Waughojy  v.  Week,  22  111. 
350 ;  Rich  V.  Eldredge,  42  N.  H.  153.  A  witness  not  interested  but  who  believes 
himself  to  be  so  is  competent :  Stallings  v.  Carson,  24  Ga.  423.  If  the  witness's 
competency  is  impeached  aliunde,  it  must  be  sustained  aliunde.  The  party  pro- 
ducing him  is  not  entitled  to  put  him  on  his  voire  dire:  Wright  v.  Mathetvs,  2 
Blackf.  187 ;  The  Watchman,  Ware  232 ;  Anderson  v.  Young,  9  Harris  443  ; 
Haynes  v.  Hunsicker,  2  Cas.  58.  When  a  party  has  attempted  to  exclude  a 
witness  produced  against  him,  by  evidence  from  others  of  his  interest  and  has 
failed,  the  judge,  in  his  discretion,  may  permit  him  to  examine  such  witness  on 
the  voire  dire;  but  it  is  doubtful  whether  this  may  be  claimed  as  a  right :  Butler 
V.  Tufts,  1  Shep.  302.  Where  a  mere  ofi"er  has  been  made  to  prove  a  witness 
interested,  he  may  still  be  examined  on  his  voire  dire  when  the  testimony  ofi'ered 
was  overruled  :  Main  v.  Newson,  Anth.  11.  If  the  interest  of  a  witness  appears 
from  his  own  testimony  he  may  testify  to  facts  which  will  remove  the  objection  ; 
aliter,  when  his  interest  is  otherwise  shown :  Montgomery  Plank  Road  Co.  v. 
Webb,  27  Ala.  618.  If  however  the  interest  appears  of  record  or  on  the  face  of 
the  instrument  sued  on,  he  is  incompetent  to  prove  his  own  release :  Hiscox  v. 
Hendree,  Ibid.  216.  When  the  interest  of  a  witness  as  partner  of  the  plaintifi" 
is  shown  by  evidence  aliunde  after  he  has  been  examined  he  cannot  be  recalled 
to  restore  his  testimony  on  his  voire  dire :  Robinson  v.  Turner,  3  Iowa  540. 


144  EXAMINATION    OF     WITNESSES     IN    CHIEF. 

been  made  to  him  on  the  voire  dire^^  Yet  it  seems  that  a  party  who 
is  cognizant  of  the  objection  of  the  witness  at  the  time  Avhen  he  is 
called,  ought  to  make  his  objection  in  the  first  instance,  according  to 
the  general  principle.''  *This  seems  to  be  a  matter  entirely 
L  J  within  the  discretion  of  the  court.  Where  the  witnesss,  hav- 
ing been  examined,  had  left  the  box,  but  on  being  recalled  answered 
a  question  put  by  the  court,  from  which  it  appeared  that  he  was  in- 
terested, it  was  held  that  his  competency  could  not  then  be  disputed.' 
And  where  a  witness  had  been  examined  and  cross-examined  or  inter- 
rogated without  objection,  it  was  held  that  the  objection  to  competency 
could  not  be  taken  at  the  trial.'  The  courts  will  not,  it  seems,  grant 
a  ncAv  trial  on  the  mere  ground  that  it  has  been  discovered,  subse- 
quently to  the  trial,  that  some  of  the  witnesses  were  inadmissible.* 
If  the  evidence  of  a  witness  be  improperly  admitted  or  rejected,  the 
court  will  grant  a  new  trial,  unless  perhaps  it  be  perfectly  clear  that 
its  admission  or  rejection  could  have  had  no  effect  on  the  verdict,  or 
the  court  beyond  all  doubt,  if  the  verdict  had  been  the  other  way, 
Avould  have  set  it  aside  as  improper,  or  where  it  related  only  to  par- 
ticular issues ;  and  as  to  them  the  verdict  has  either  been  found  for 
the  objector  in  favor  of  the  party  applying  for  the  new  trial,"  or  the 
other  party  consents  that  it  shall  be  so  entered. 

P  Per  Lord  Ellenborough,  Hoioell  v.  Locke,  2  Camp.  14  ;  Perigal  v.  Nicholson, 
1  Wightw.  64. 

1  Turner  v.  Pearte,  1  T.  R.  717.  But  the  doctrine  in  the  text  has  been  much 
shaken  in  Jacobs  v.  Layhorn,  11  M.  &  W.  685,  where  a  witness  for  the  defendant 
after  answering  several  questions  upon  examination  in  chief,  was  stopped  by 
the  plaintiff's  counsel,  and  in  answer  to  his  questions  acknowledged  that  he  was 
answerable  to  the  defendant's  attorney  for  the  costs.  It  was  held  by  the  court 
in  banc  that  the  objection  to  his  competency  was  not  too  late,  and  Lord  Abinger, 
C.  B.,  there  observed,  that  a  counsel  may  wait  and  see  whether  the  witness  will 
speak  the  truth,  and  if  he  finds  he  does  not,  then  he  may  examine  him  on  the 
voire  dire,  and  exclude  his  testimony. 

'  Beeching  v.  Ganger,  Holt  C.  (3  E.  C.  L.  R.)  313  ;  Wollaston  v.  HaJcewill,  3 
M.  &.  G.  (42  E.  C.  L.  R.)  297  ;  Fellingham  v.  Sparrow,  9  Dowl.  P.  C.  141 ;  Dewd- 
ney  v.  Palmer,  4  M.  &  W.  664. 

»  Ogle  V.  Paleski,  Holt  C.  (3  E.  C.  L.  R.)  485. 

'  Turner  v.  Pearte,  1  T.  R.  717  ;  see  note  (m).  But,  if  there  were  anything 
like  fraud  on  the  part  of  the  party  producing  the  witness,  the  court  will  inter- 
fere :    Wade  v.  Simeon,  2  C.  B.  (52  E.  C.  L.  R.)  342. 

"  WrUjU  V.  Doe  dem.  Tatham,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  330 ;  Crease  v. 
Barrett,  1  C.  M.  &  R.  919  ;  De  Rutzen  v.  Farr,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  53 ; 
Uorfurd  v.  Wilson,  1  Taunt.  12 ;  and  Edwards  v.  Evans,  3  East  451. 

1  See  ante,  p.  1 1 5,  note. 


LEADING    QUESTIONS.  166 


*III.    The  mode  of  examination  in  cliief — Cross-exami-  ^  ^  ,^      ,  ^  ^^-, 

''  ...  r  146 *1661 

nation^ — and  re-examination  of  tvitnesses.  *-  -" 

Upon  the  examination  of  a  witness  in  chief,  the  principal  rule  to 
be  observed  is,  that  leading  questions  are  not  to  be  asked  ;  tliat  is, 
questions  which  suggest  to  a  witness  the  answer  which  he  is  to  make. 
Where  a  witness  is  too  ready  to  serve  the  cause  of  his  party,  and 
willing  to  adopt  and  assert  what  may  be  suggested  for  his  benefit, 
objections  to  questions  of  this  nature  are  of  tlie  highest  importance; 
but  where  the  matter  to  which  the  witness  is  examined  is  merely  in- 
troductory of  that  which  is  material,  it  is  frequently  desirable  to  lead 
his  mind  directly  to  the  subject ;  and  where  he  is  examined  as  to 
material  facts,  it  is  in  general  necessary,  to  some  extent,  to  do  this. 
Questions  to  which  the  answer  yes  or  no  would  be  conclusive,  would 
certainly  be  objectionable;  and  so  would  any  question  which  plainly 
suggested  to  the  witness  the  answer  which  the  party,  or  his  counsel 
hoped  to  extract."  Where  a  witness  betrays  a  forwardness  to  serve 
the  party  for  whom  he  is  called,  but  does  not  know  how  best  to  effect 
his  object,  it  is  most  essential  to  justice  that  he  should  not  be 
prompted.  And  it  is  to  be  observed,  that  answers  extracted  by  such 
improper  means  are  of  little  advantage  in  general  to  the  party  in 
whose  favor  they  are  given,  since  evidence  obtained  from  a  partial 
witness  by  unfair  means  must  necessarily  be  viewed  with  the  utmost 
jealousy. 

On  the  other  hand,  objections  of  this  nature  ought  not  to    be 
wantonly  or  captiously  made,"  since   it  is,  to  some  *extent 
always  necessary  to  lead  the  mind  of    the  witness  to  the    ^         -■ 

"  The  objection  in  principle  applies  to  those  cases  only  where  the  question 
propounded  involves  an  answer  immediately  concluding  the  merits  of  the  case, 
and  indicating  to  the  witness  an  answer  which  will  best  accord  with  the  interests 
of  the  party  :  see  2  Pothier,  by  Evans,  265. 

°  Nicholls  V.  Doivding,  1  Stark.  C.  (2  E.  C.  L.  R.)  81.  In  order  to  prove  that 
Dowding  and  Kemp  were  partners,  the  witness  was  asked  whether  Kemp  had 
interfered  in  the  business  of  Dowding ;  and  upon  the  objection  being  taken  that 
this  was  a  leading  question,  Lord  Ellenborough,  C.  J.,  held  that  it  was  a  proper 
question,  and  intimated  that  objections  of  this  nature  were  frequently  made 
without  consideration.  It  is  not  a  very  easy  thing  to  lay  down  any  precise 
general  rule  as  to  leading  questions  :  on  the  one  hand,  it  is  clear  that  the  mind 
of  the  witness  must  be  brought  into  contact  with  the  subject  of  inquiry  ;  and, 
on  the  other,  that  he  ought  not  to  be  prompted  to  give  a  particular  answer,  or 
to  be  asked  any  question  to  which  the  answer  "yes"  or  "no"  would  be  con- 
clusive. But  how  far  it  may  be  necessary  to  particularize,  in  framing  the 
question,  must  depend  upon  the  circumstances  of  each  individual  case.      Upon 


167  EXAMINATION     OF     AVITNESSES     IN    CHIEF. 

subject  of  inquiry.     In  some  instances  the  court  Avill   allow  leading 

r*ipQ"|    questions  to  be  put  upon  an  examination  in  *chief,  as  where 

it  evidently  appears  that  the  witness  wishes  to  conceal  the 

truth,  or  to  favor  the  opposite  party. p     Thus  a  party's  own  witness 

the  trial  of  De  Berenger  and  others,  before  Lord  Ellenborough,  at  Guildhall, 
for  a  conspiracy,  it  became  necessary  for  a  witness  (a  postboy  who  had  been 
employed  to  drive  one  of  the  actors  in  a  fraud)  to  identify  De  Berenger  with 
that  person ;  and  Lord  Ellenborough  held  that,  for  this  purpose,  the  counsel  for 
the  prosecution  might  point  out  De  Berenger  to  the  witness,  and  ask  him 
whether  he  was  the  person.  The  same  was  done  in  Watso7i^s  case,  upon  a  trial 
at  bar:  2  Stark.  C.  (3  E.  C,  L.  R.)  128.  In  these  cases,  the  question  was  as  to 
a  mere  fact  to  be  determined  hj  inspection ;  and,  in  all  such  cases,  it  seems  that 
the  mind  of  the  witness  may  be  led  directly  to  the  very  point,  although  a  more 
general  question  might  have  been  proposed,  as,  whether  the  witness  saw  the 
person  whom  he  had  described  in  court.  So  where  a  witness  is  called  to  prove 
the  handwriting  of  another,  it  is  the  common  practice  to  show  him  the  docu- 
ment, and  to  ask,  directly,  whether  that  is  the  handwriting  of  A.  B.  But  where 
a  witness  is  examined  as  to  any  conversation,  admission,  or  agreement,  where 
the  particular  terms  of  the  admission  or  contract  are  important,  this  objection 
chiefi}' becomes  material,  since  there  is  danger  lest  the  witness  should  by  design 
or  mistake  be  guilty  of  some  variance,  and  give  a  false  coloring  to  the  transac- 
tion. In  such  cases  there  seems  to  be  no  objection  to  directing  the  mind  of  the 
witness  fully  to  the  subject,  by  asking  him  whether  he  was  present  when  any 
conversation  took  place  between  the  parties,  or  relating  to  the  particular  sub- 
ject; and  when  the  mind  of  the  witness  has  been  thus  directed  to  the  subject- 
matter,  to  request  him  to  state  what  passed.  It  is  obvious  that  observations 
like  these  are  intended  for  the  use  of  mere  students ;  to  such  it  may  not  be 
improper  to  suggest,  that  when  the  time  and  place  of  the  scene  of  action  have 
once  been  fixed,  it  is  generally  the  easiest  course  to  desire  the  witness  to  give 
his  own  account  of  the  matter,  making  him  omit,  as  he  goes  along,  an  account 
of  what  he  has  heard  from  others,  which  he  always  supposes  to  be  quite  as 
material  as  that  which  he  himself  has  seen.  If  a  vulgar,  ignorant  witness  be 
not  allowed  to  tell  his  story  in  his  own  way,  he  becomes  embarrassed  and  confused, 
and  mixes  up  distinct  branches  of  his  testimony.  He  always  takes  it  for  granted 
that  the  Court  and  jury  know  as  much  of  the  matter  as  he  does  himself  because 
it  has  been  the  common  topic  of  conversation  in  his  own  neighborhood  ;  and 
therefore  his  attention  cannot  easily  be  drawn  so  as  to  answer  particular  ques- 
tions without  putting  them  in  the  most  direct  form.  It  is  difficult,  therefore,  to 
extract  the  important  parts  of  his  evidence  piecemeal ;  but  if  his  attention  be 
first  drawn  to  the  transaction  by  asking  him  when  and  where  it  happened,  and 
he  be  told  to  describe  it  from  the  beginning,  he  will  generally  proceed  in  his 
own  way  to  detail  all  the  facts  in  the  order  of  time. 

P  In  Clarke  v.  *SV///W7/,  lly.  &  M.  (21  E.  C.  L.  R.)  12G,  Best,  C.  J.,  observed, 
"There  is  no  fixed  rule  which  binds  the  counsel  calling  tlic  witness  to  a  par- 
ticular mode  of  examining  him.  If  a  witness,  by  his  conduct  in  the  box,  shows 
himself  decidedly  adverse,  it  is  always  in  the  discretion  of  the  judge  to  allow  a 
cross-examination."  And,  in  Bastin  v.  Carew,  Ry.  &  M.  (21  E.  C.  L,  R.)  127, 
Abbott,  C.  J.,  in  allowing  the  cross-examination  by  the  counsel  who  called  him 


LEADING    QUESTIONS.  168 

who,  having  given  one  account  of  tlie  matter,  when  called  on  the 
trial  gives  a  different  account,  may  be  asked  by  the  party  calling 
him  whether  he  had  given  such  account,  stating  it,  to  the  attorney. "^ 
And  if  a  witness  called  stands  in  a  situation  which,  of  necessity, 
makes  him  adverse  to  the  party  calling  him,  counsel  may  cross-ex- 
amine him.""     Thus,  Avhere  an  issue  has  been  *directed,  with 

.  r*1691 

power  to  examine  a  party,  the  counsel  of  the  opposite  party    ^          J 

may  cross-examine  him,  for  being  a  party,  he  is  presumed  to  be  an 
adverse  witness.'  In  like  manner  where,  on  an  issue  of  devisavit 
vel  non  from  the  Court  of  Chancery,  the  party,  in  obedience  to  the 
requisition  of  that  court,  having  called  one,  proceeded  to  call 
another  attesting  witness  to  the  will,  who  gave  evidence  tending  to 
prove  the  testator  to  have  been  insane,  he  was  allowed  to  cross-ex- 
amine him  :  the  witness  in  such  a  case,  not  being  regarded  as  the 
witness  of  the  party,  but  rather  of  the  court,  and  the  party  having 
no  option  as  to  producing  him.'  And  where,  from  the  nature  of  the 
case,  the  mind  of  the  witness  cannot  be  directed  to  the  subject  of 
inquiry  without  a  particular  specification  of  it,  as  when  he  is  called  to 
contradict  another  as  to  the  contents  of  a  particular  letter  which  is 
lost,  and  cannot  without  suggestion,  recollect  the  contents,  the  par- 
ticular passage  may  be  suggested  to  him."     So  where  a  witness   is 

of  an  adverse  witness,  said,  that  in  each  particular  case  there  must  be  some 
discretion  in  the  presiding  judge,  as  to  the  mode  in  which  the  examination  shall 
be  conducted,  in  order  best  to  answer  the  purposes  of  justice."  And  see  Dickinson 
V.  Shee,  4  Esp,  67  ;  Parkin  v.  Moo7i,  7  C.  &  P.  (32  E.  C.  L.  R.)  408  ;  R.  v. 
Chapman,  8  C.  &  P.  (34  E.  C.  L.  R.)  558;  E.  v.  Ball,  8  C.  &  P.  (34  E.  C.  L.  R.) 
745. 

1  Melhuish  V.  Collier,  19  L.  J.,  Q.  B.  493. 

'  Per  Best,  C.  J.,  Clarke  v.  Saffery,  Ry.  &  M.  (21  E.  C.  L.  R.)  126.  The 
situation  of  the  witness,  and  the  inducements  under  which  he  may  labor  to  give 
an  unfair  account,  are  material  considerations  in  this  respect.  A  son  will  not 
be  very  forward  in  stating  the  misconduct  of  his  father,  of  which  he  has  been 
the  only  witness.  A  servant  will  not,  in  an  action  against  the  master,  readily 
admit  his  own  negligence.     See  2  Pothier,  by  Evans,  267. 

=  Clarke  v.  Saffertj,  Ry.  &  M.  (21  E.  C.  L.  R.)  126. 

'  Per  Cresswell,  J.,  Bowman  v.  Bowman,  2  M.  &  Rob.  501. 

"  Courteenv.  Touse,  1  Camp.  43.  The  plaintiif's  son,  in  an  action  on  a  policy 
on  goods,  being  asked  whether  the  plaintiff  had  not  written  a  letter  to  him, 
saying,  '•  that  he  had  disposed  of  all  his  goods  at  a  profit,"  swore  that  he  did 
not,  but  only  said  that  "  he  might  have  disposed  of  the  goods  at  a  great  profit, 
as  he  had  been  offered  Sd.  a  pair,"  &c.  To  contradict  this  a  witness  was  Ccalled 
by  the  defendant,  and,  after  having  stated  all  he  recollected  about  the  letter,  he 
was  asked  if  it  contained  anything  about  the  plaintiff  having  been  offered  8d.  a 
pair,  &c.      Lord  Ellen  borough  held  that  after  exhausting  the  witness's  memory 


169  EXAMINATION     OF     WITNESSES     IN    CHIEF. 

called  in  order  to  contradict  the  testimony  of  a  former  witness,  who 
has    stated    that    such    and    such    expressions    were    used,    or    such 

*and  such  things  were  said,  it  is  the  usual  practice  to  ask 
L  J  whether  those  particular  expressions  were  used,  or  those 
things  were  said,  without  putting  the  question  in  a  general  form  by 
inquiring  what  was  said.  If  this  were  not  to  be  allowed,  it  is  obvious 
that  much  irrelevant  and  inadmissible  matter  would  frequently  be 
detailed  by  the  witness. 

The  negative,  if  not  allowed  to  be  directly  proved,  could  only  be 
proved  indirectly,  by  calling  on  the  Avitness  to  detail  the  whole  of 
what  was  said  on  the  particular  occasion,  if  any  such  were  singled 
out  by  the  evidence,  or  to  detail  the  whole  of  several  such  conver- 
sations, where  the  use  of  the  alleged  expressions  or  words  was  not 
limited  to  any  conversation  in  particular ;  and,  after  all,  the  evidence 
would  not  be  complete  and  satisfactory  to  establish  the  negative, 
unless  sooner  or  later  the  question  as  to  the  use  of  the  particular 
expressions  were  to  be  directly  put,  for  till  then  the  evidence  would 
show  only  that  the  witness  did  not  remember  their  use ;  but  the 
direct  neerative,  after  the  attention  of  the  witness  had  been  excited 
by  the  suggestion  of  the  very  expressions,  would  go  much  further. 
It  may  frequently  happen  that  a  Avitness,  unable  to  detail  even  the 
substance  of  a  particular  conversation,  may  yet  be  able  to  negative 
with  confidence  proposals,  offers,  statements,  or  other  matters,  sworn 
to  have  been  made  in  the  course  of  a  conversation.  In  such  cases, 
therefore,  this  form  of  inquiry  is  absolutely  necessary  for  obtaining 
complete  information  on  the  subject.  So  where  a  witness  is  called  to 
prove  affirmatively  what  a  witness  on  the  other  side  has  denied,  as, 
for  instance,  to  prove  that  on  some  former  occasion  that  witness  gave 
a  diflerent  account  of  the  transaction,  a  difficulty  may  frequently  arise 
in  proving  affirmatively  that  the  first  witness  did  make  such  other 
statement,  without  a  direct  question  to  that  eifect. 

But  although  the  practice  above  stated  is,  to  a  certain  extent,  sanc- 
tioned by  a  principle  of  convenience,  and  although,  after  other  at- 
tempts have  failed,  it  becomes  a  matter  not  of  mere  convenience,  but 

of  absolute  necessity  *so  to  put  the  question  to  a  witness 
^  ^    called  to  contradict  a  former  one,  it  is  plain  that  the  conve- 

a«  to  tlic  contents  of  the  letter,  he  mi/^ht  be  asked  if  it  contained  the  passai^e 
r(;<;ited  ;  for  otiierwise  it  would  be  impossible  to  come  to  a  direct  contradiction. 
Where  a  witnesH  was  called  to  contradict  a  former  witness  as  to  a  conversation 
whicli  ho  )iad  denied,  it  was  held  that  the  terms  miffht  be  suffgested  to  him  in 
tht;  first  instamte  :  /<J<hno7ids  v.  Walker,  cor.  Al)l)ott,  C.  J.,  ?>  Stark.  (3  E.  C.  L. 
11. j  8  ;  but  see  //allctt  v.  Councn.s,  '2  M.  .V:  Hub.  2o8,  infra,  p.  171. 


LEADING    QUESTIQ.NS.  171 

nience  so  attained  to  is  purchased  at  the  expense  of  some  departure 
from  a  general  principle,  and  that  it  would  usually  be  more  satisfac- 
tory, where  that  is  practicable,  that  the  desired  answer  should  be  ob- 
tained without  a  direct  suggestion,  by  which  a  fraudulent  witness 
might  be  greatly  aided.  And  it  seems  that  the  consideration  of  mere 
convenience  ought  not  to  operate  at  all  where  the  contents  of  a  par- 
ticular document,  or  the  details  of  a  particular  conversation,  are  ma- 
terial* to  the  issue.  As  where  the  question  in  an  action  of  assumpsit 
turns  upon  the  terms  of  a  lost  written  agreement,  or  on  an  alleged 
oral  contract,  e.  g.,  the  warranty  of  a  horse.  In  such  cases  each  is 
interested  in  showino;  what  the  terms  of  the  lost  writing  or  conversa- 
tion  alleged  to  amount  to  a  warranty  really  were  ;  and  as  the  atten- 
tion of  both  parties  would  be  previously  drawn  to  the  subject,  there 
would  be  but  little  inconvenience  in  adhering  to  the  ordinary  course 
of  examination,  reserving  the  power  to  deviate  where  the  necessity 
for  deviation  arose.  And  it  is  further  observable  that  in  the  case  of 
Courteeyi  v.  Touse/  where  Lord  Ellenborough  ruled  that  the  witness 
might  be  *asked  whether  a  particular  letter  contained  a  pas-  ^  „^^ 
sage  sworn  to  by  another  witness,  this  was  to  be  done  after  ^  -J 
exhausting  the  witness's  memory  as  to  the  contents  of  the  letter.  This 
decision,  therefore,  turned  not  upon  a  principle  of  convenience,  but 
of  necessity. 

Another  illustration  of  the  general  principle  occurs  where  details 
are  to  be  made  of  such  length  or  difficulty  that  the  memory  of  the 
witness  will  not  enable  him  to  give  his  testimony  without  assistance. 
Thus  where  a  witness  is  called  to  prove  a  co-partnership  between  a 
number  of  persons  whose  names  he  cannot  recollect,  the  list  of  names 

^  Upon  this  principle,  in  Hallett  v.  Cousens,  2  M.  &  Rob.  238,  a  witness  having 
denied  on  cross-examination  that  he  had  used  certain  expressions  in  a  conversa- 
tion at  which  the  plaintiff  and  defendant  were  alleged  to  have  been  present, 
Erskine,  J.,  considering  that  the  conversation  was  evidence  per  se,  and  not 
proved  for  the  simple  purpose  of  discrediting  the  witness,  held,  that  the  very 
words  could  not  be  suggested  to  a  witness  called  to  prove  that  they  had  been 
used  ;  and  this  seems  perfectly  consistent  with  principle,  inasmuch  as  a  party 
has  a  right  to  have  every  part  of  the  conversation  laid  before  the  jury,  which 
could  in  any  way  qualify  or  explain  the  expressions  as  to  which  the  witness  had 
been  cross-examined  (see  Prince  v.  Samo,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  627,  post)  ; 
but  it  would  also  appear,  from  the  same  case,  to  be  proper  to  lead  the  witness's 
mind  to  the  particular  matter,  and  direct  him  to  confine  his  attention  to  that,  as 
the  party  certainly  has  no  right  to  have  the  whole  of  the  conversation,  if  it  in 
volved  independent  matter. 

'  1  Camp.  43,  supra. 


172  EXAMINATION    OF    WITNESSES     IN    CHIEF. 

may  be  read  to  him,  and  he  may  be  asked  whether  those  persons  are 
members  of  the  firm/  ^ 

A  witness  is  examined  either  as  to  facts,  simply,  which  he  him- 
self knows,  or  in  some  instances  as  to  his  own  inferences  from  facts, 
or  as  to  facts  which  he  has  heard  from  others.  In  ordinary  cases  the 
witness  ought  to  be  examined  as  to  facts  only,  and  not  as  to  any 
opinion  or  conclusion  which  he  may  have  drawn  from  facts,  for  those 
are  to  be  formed  by  a  jury,  except  indeed  where  the  conclusion  is  an 
inference  of  skill  and  judgment.* 

A  witness  examined  as  to  facts  ought  to  state  those  only  of  which 
he  has  had  personal  knowledge ;  and  such  knowledge  is  supposed,  if 
not  expressly  stated  upon  the  examination  in  chief;  and  upon  cross- 
examination,  his  means  of  knowledge  may  be  fully  investigated,  and 
if  he  has  not  had  sufficient  and  adequate  means  of  knowledge,  his  evi- 
dence will  be  struck  out.     It  has  been  said,  that  a  witness  must  not 

'  Acerro  v.  Petroni,  1  Stark.  C.  (2  E.  C.  L.  R.)  100. 
^  Goodtitle  dem.  Revett  v.  Braham,  4  T.  R.  497. 

*  In  general  the  principles' laid  down  in  the  texts  are  sustained  throughout  by 
the  American  cases  :  Snyder  v.  Snyder,  6  Binn.  483  ;  People  v.  Mather,  4  Wend 
229 :  McLean  v.  Thorp,  3  Mo.  315 ;  U.  States  v.  Dickenson,  2  McLean  325 
Bank  of  Northern  Liberties  v.  Davis,  6  W.  &  S.  285  ;  Towns  v.  Alford,  2  Ala 
378;  Sadler  v.  Miirrah,  3  How.  (Miss.)  195;  Turney  v.  State,  8  S.  &  M.  104 
Straicbridge  v.  Spann,  8  Ala.  820;  Hopper  v.  ComrnHh,  6  Gratt.  684;  Able  v 
Sparks,  6  Tex.  319 ;  Long  v.  Steiger,  8  Ibid.  460;  Stringfelloiv  v.  State,  26  Miss 
157  ;^  Willis  v.  Quimby,  11  Fost.  485.  Putting  a  question  in  the  alterative  does 
not  remove  the  objection:  People  v.  Mather,  4  Wend.  229.  A  question  to  a 
witness  proposed  in  the  form  "Whether  or  not"  is  not  ordinarily  objectionable 
as  leading.  It  may  be  so,  when  proposed  in  that  form,  if  it  be  otherwise  in 
such  terms,  that  from  the  nature  of  the  question,  in  connection  with  its  subject- 
matter,  it  suggests  to  the  witness  the  answer  desired :  Bartlett  v.  Hoyt,  33  N.  H. 
151.  It  is  a  matter  within  the  discretion  of  the  court,  and  the  allowance  of  a 
leading  question  is  not  the  subject  of  a  writ  of  error,  although  the  refusal  to 
allow  a  party  to  put  a  leading  question  who  is  entitled  to  do  so  as  on  cross- 
examination,  is  :  Yarboroitgh  v.  Moss,  9  Ala.  382 ;  Sears  v.  Shafer,  1  Barb.  S.  C. 
408  ;  People  v.  Lohman,  2  Ibid.  216  ;  Donnell  v.  Jones,  13  Ala.  490  ;  Badlong  v. 
Van  Nastrund,  24  Barb.  S.  C.  25.  Contra,  Parsons  v.  Bridgham,  34  Me.  240. 
A  judge  at  the  trial  may  permit  counsel,  on  a  direct  examination,  to  suggest  to 
a  witness  names,  dates  and  items,  provided  that  the  witness  has  exhausted  his 
memory,  and  the  purposes  of  justice  require  such  a  course  to  bo  taken  :  Hachins 
V.  People's  Mutual  Fire  Ins.  Co.,  11  Fost.  238.  A  question  is  not  leading  if  it 
culls  for  a  direct  aflirmative  or  negative  answer,  and  is  no  more  suggestive  of 
one  than  the  other :  Spear  v.  Richardson,  37  N.  II.  23  ;  Floyd  v.  State,  30  Ala. 
511  ;  Mathis  v.  Buford,  17  Tex.  152;  Dudley  v.  Flkins,  39  N.  II.  78;  Page  v. 
Parker,  40  N.  II.  47.  And  see  Trnmmcll  v.  McDade,  29  Tex.  360;  Adams  v. 
Jlarrold,  29  hid.  198  ;  heiin  v.  Peck,  2  Rob.  629 ;  Bariis  v.  hujalls,  39  Ala.  193. 


BELIEF — OPINION.  172 

be  examined  in  chief  as  to  his  belief  ov  -persuasion,  but  only  as  to  his 
knowledge  of  the  fjiet,  since  judgment  m.ust  be  given  secundum  alle- 
gata et  probata  ;  and  a  man  cannot  be  indicted  for  perjury  who  falsely 
swears  as  to  his  persuasion  or  belief.**  As  far  as  regards  *more  p^-,  -g-, 
belief  or  persuasion,  which  does  not  rest  upon  a  sufficient  or  ^  J 
legal  foundation,  this  position  is  correct ;  as  Avhere  a  man  believes  a 
fact  to  be  true,  merely  because  he  has  heard  it  said  to  be  so  ;  but  with 
respect  to  persuasion  or  belief,  as  founded  on  facts  within  the  actual 
knowledge  of  the  witness,  the  position  is  not  true.  On  questions  of 
identity  of  persons,  and  of  handwriting,  it  is  everyday's  practice  for 
witnesses  to  swear  that  they  believe  the  person  to  be  the  same,  or  the 
handwriting  to  be  that  of  a  particular  individual,  although  they  will 
not  swear  positively ;  and  the  degree  of  credit  to  be  attached  to  the 
evidence  is  a  question  for  the  jury.  And  with  regard  to  the  second 
objection,  it  has  been  decided  that  a  man  who  falsely  swears  that  he 
thinks  or  believes,  may  be  indicted  for  perjury."' 

So  where  professional  men  and  others  give  evidence  on  matters  of 
skill  and  judgment,  their  evidence  frequently  does  not,  and  often 
cannot,  from  the  nature  of  the  case,  extend  beyond  opinion  and  be- 
lief. But  in  general,  whenever  the  inference  is  one  of  skill  and 
judgment,  the  opinion  of  experienced  persons  is  admissible,  for  by 
such  means  only  can  the  jury  be  enabled  to  form  a  correct  conclusion. 

The  general  distinction  is  this,  that  the  jury  must  judge  of  the  facts 
for  themselves,  but  that  wherever  the  question  depends  on  the  exercise 
of  peculiar  skill  and  knowledge  that  may  be  made  available,  it  is  not 
a  decision  by  the  witness  on  a  fact  to  the  exclusion  of  the  jury,  but 
the  establishment  of  a  new  fact,  relation,  or  connection,  which  would 
otherwise  remain  unproved.  Not  to  admit  such  evidence,  would  be 
to  reject  what  was  essential  to  the  investigation  of  truth.  Thus  an 
engineer  may  be  examined  as  to  his  judgment  on  the  effect  of  an 
embankment    on    a    harbor,    as    collected    from    experiment.''     So 

*upon  the  question  whether  a  seal  has  been  foro;ed,  the  tes- 

•  .  r*l741 

timony  of  a  seal-engraver,  as  to  the  difference  between  the    ^         -• 

impression  in  question  and  a  genuine  one,  is  also  admissible.®     In 

''  Adams  v.  Canon,  Dyer  53  ;  note  to  Rolfe  v.  Hampden,  Dyer  53. 

"  Millar's  case,  3  Wils.  427  ;  2  Bl.  881  ;  Pedlei/s  case,  1  Leach  327 ;  Reg.  v. 
Schlesinger,  10  Q.  B.  (59  E.  C.  L.  R.)  670. 

^  Folkes  V.  Chadd,  Mich.  23  Geo.  III.,  3  Dougl.  (26  E.  C.  L.  II.)  157  ;  Vol.  II., 
tit.  Handwriting. 

'  By  Lord  Mansfield,  in  Folkes  v.  Chadd,  3  Dougl.  (26  E.  C.  L.  R.)  157.  Such 
evidence  is  also  admissible  to  show  whether  a  particular  handwriting  is  natural 
and  genuine,  or  forged  and  imitated :  Carij  v.  Pitt,  Peake  Ev.  Ixxxv.  ;  R.  v. 
11 


174  EXAMINATION    OF     WITNESSES    IN     CHIEF. 

like  manner  a  ship-builder  may  be  examined  to  state  his  opinion  as 
to  the  sea-worthiness  of  a  ship,  from  a  survey  made  by  others/  So 
the  testimony  of  medical  men  is  constantly  admitted  with  respect 
to  the  cause  of  disease,  or  of  death,  in  order  to  connect  them  with 
particular  acts,  and  as  to  the  general  sane  or  insane  state  of  the 
mind  of  the  patient,  as  collected  from  the  number  of  circumstances. 
Such  opinions  are  admissible  in  evidence,  although  the  professional 
witnesses  found  them  entirely  on  the  facts,  circumstances,  and  symp- 
toms established  in  evidence  by  others,  and  without  being  personally 
acquainted  with  the  facts. ^  But  in  such  a  case  evidence  is  not  ad- 
missible that  a  particular  act  for  which  a  prisoner  is  tried  was  an  act 
of  insanity. ''  And,  in  general,  scientific  men  ought  to  be  examined 
only  as  to  their  opinion  *on  the  facts  proved,  and  not  as  to  the 
L          -I    merits  of  the  case.' ^ 

Cator,  4  Esp.  C.  117.  But  in  Gurnaj  v.  Langlands,  5  B.  &  Aid.  (7  E.  C.  L,  R.) 
330,  the  court  held  that  the  opinion  of  an  inspector  of  franks,  whether  a  par- 
ticular writing  was  in  a  forged  or  imitated  hand,  was  of  little  weight ;  and  see 
further,  Doe  v.  Suckermore,  5  Ad.  &  E.  (31  E.  C.  L.  R.)  751.  But  antiquaries 
may  be  called  to  express  their  opinion  as  to  the  date  at  which  an  apparently 
ancient  document  was  written  [Tracy  Peerage  case,  10  CI.  &  Fin.  191)  ;  and  the 
opinion  of  a  person  in  the  habit  of  receiving  letters  is,  it  seems,  evidence  of  the 
genuineness  of  a  post-mark:  Ahhey  v.  Lill,  5  Bing.  (15  E.  C.  L.  R.)  299.  But 
see  further,  as  to  post-marks,  which  are  not  evidence  per  se  without  proof:  li. 
V.  Watson,  1  Camp.  215;  Woodcock  v.  Uouldsworth,  16  M.  &  W.  124;  Kent  v. 
Lowen,  1  Camp.  178;  Fletcher  v.  Braddyll,  3  Stark.  (3  E.  C.  L.  R.)  64; 
Plumer's  case,  R.  &  R.  C.  C.  264 

^  Thornton  v.  Royal  Exchange  Assurance  Company,  Peake's  C.37;  Chaurand 
V.  Angerstein,  44;  Beckwith  v.  Sydchotham,  1  Camp.  117. 

8  Wright's  case,  Russ.  &  Ry.  C.  C.  L.  456  ;  R.  v.  Searle,  I  Mood.  &  Rob.  75  ; 
and  see  McNaghten' s  case,  10  CI.  &  Fin.  2U0. 

"  Ihid. 

'  Thus,  in  an  action  for  unskilfully  navigating  a  ship,  a  master  of  the  Trinity 
House,  or  otiicr  nautical  man,  cannot  be  asked  whether,  having  heard  the  evi- 
dence, he  considers  the  ship  was  improperly  navigated,  for  that  would  be  re- 
quiring him  to  draw  a  conclusion  of  fact  and  then  to  give  an  opinion  upon  it, 
and  would  make  him  a  judge  not  only  of  the  matter  of  skill  and  science  but 
also  of  the  truths  of  the  facts  in  dispute  ;  but  he  may  be  asked  what  was  the 
duty  of  a  captain  under  certain  specified  circumstances:  Sills  v.  Broion,  9  Car. 
&  F.  (.'{S  Vj.  C.  L.  R.)  604;  or  whether,  admitting  the  facts  as  proved  by  the 
plaintii!'  to  be  true,  he  is  of  opinion  that  a  collision  could  have  been  avoided  by 
proper  care  on  the  i)art  of  defendant's  servant:  Fenicick  v.  Bell^  1  Car.  &  K. 
(47  E.  C.  L.  R.)  312.  And  see  Malfon  v.  Neshit,  1  Car.  &  P.  (12  E.  C.  L.  R.)  70 ; 
Jameson  v.  Drinkald,  12  Moore  (22  E.  C.  L.  R.)  148.     So  where  the  sanity  or 

'  PcrHons  of  skill  are  allowed  to  give  their  opinion  in  evidence,  only  in  cases 
where,  from   the  nature  of   tin;  subjcu-t,  facts  disconnecti^d   from   sucli   oi)inion 


OPINION — QUESTIONS     OF     SKILL.  175 

In  order  likewise  to  prove  the  law  of  a  foreign  country,  or  even  of 

Scotland,''  where  it  does  not  depend  upon  the  statutes  of  the  United 

Kiniidora,   the    only  proper'  evidence  *is  that  of  men  con-    ^  ^„„^ 

.  r  1761 

versanf"  with  the  law  of  the  particular  country.     Upon  such    ^          -' 

insanity  of  an  individual  is  the  point  to  be  decided  by  the  jury,  and  medical 
men  who  previously  knew  nothing  of  the  prisoner,  but  have  heard  the  evidence, 
are  called  on  to  give  an  opinion,  the  proper  course  is  not  to  ask  them  what  their 
opinion  is  as  to  the  state  of  mind  of  the  party,  for  that  would  necessarily  assume 
and  involve  the  truth  of  the  evidence  which  it  is  for  the  jury,  and  not  the  wit- 
nesses, to  weigh  and  decide,  but  they  should  be  asked  what  is  their  opinion, 
assuming  the  facts  stated  by  the  witnesses  to  be  true,  as  to  his  state  of  mind  : 
WNaghtens  case,  10  CI.  &  Fin.  200 ;  1  Car.  &  K.  (47  E.  C.  L.  R.)  135.  Where, 
however,  the  truth  of  the  facts  is  not  disputed,  and  the  question  remaining  is 
one  almost  exclusively  of  science,  it  is  usual  to  allow  the  question  to  be  thus 
broadly  put,  though  if  objected  to,  it  could  not  be  insisted  upon.  If  doubts 
exist  as  to  the  accuracy  of  some  of  the  facts,  it  may  perhaps  be  well  in  pro- 
pounding the  question  to  the  witnesses  to  exclude  those  facts  from  their  con- 
sideration ;  and  see  Wheeler  v.  Alderson,  3  Hagg.  Eccl.  R.  574. 

"  Dairy mple  v.  Dalrymple,  2  Hagg.  54 ;  Reg.  v.  Dent,  1  Car.  &  K.  (47  E.  C.  L. 
R.)  97. 

'  Baron  de  Bode's  case,  8  Q.  B.  (55  E.  C.  L.  R.)  208  ;  Sussex  Peerage  case,  11 
CI.  &  Fin.  85.  These  authorities  overrule  Clegg  v.  Levy,  3  Camp.  lOG;  Millar  v. 
Heinrick,  4  Camp.  155;  Pictoii's  case,  30  Howell's  St.  T.  225;  Boehtlinck  v. 
Schneider,  3  Esp.  58,  where  it  was  thought  that  the  written  law  of  a  foreign 
country  must  be  proved  by  properly  authenticated  documents.  The  Sussex 
Peerage  case  also  overrules  R.  v.  Dent,  so  far  as  the  latter  case  admitted  a  per- 
son not  peritus  virtute  officii  or  virtute  professionis  to  prove  foreign  law. 

"  Sussex  Peerage  case,  11  CI.  &  Fin.  85:  Bristoio  v.  Sacqueville,  19  L.  -J.,  Ex. 
289;    Vanderdonckt  v.  Thellusson.  ib.  C.  P.  12. 

cannot  be  so  presented  to  a  jury  as  to  enable  them  to  pass  upon  the  question 
with  the  requisite  knowledge  and  judgment:  Jefferson  Ins.  Co.  v.  Cotheal,  7 
Wend.  72.  Persons  skilled  in  the  knowledge  of  handwriting  are  competent  to 
testify  concerning  it,  although  they  never  saw  the  parties  write:  Hess  v.  State 
of  Ohio,  5  Ohio  Rep.  6.  So  a  practical  surveyor  in  testifying  respecting  marks 
on  trees  or  piles  of  stones  may  express  his  opinion  whether  they  were  intended 
as  monuments  of  boundaries  :  Davis  v.  Mann,  4  Pick.  156.  In  an  action  for  the 
matei'ials  found  in  building  a  house  and  the  labor  done  in  erecting  it,  the  testi- 
mony of  master  builders,  who  had  examined  the  house  and  made  an  estimate  of 
the  expense  of  erecting  it,  is  admissible  to  ascertain  the  amount  of  damages : 
Tebhetts  v.  Haskins,  16  Shep.  283.  In  an  action  for  a  breach  of  warranty  of  the 
soundness  of  a  horse  a  witness  called  to  give  an  opinion  relative  to  the  defects 
of  a  horse's  eyes,  stated  that  he  was  not  a  farrier,  but  that  he  professed  to  under- 
stand when  he  tried  a  horse,  whether  his  eyes  were  good  or  not,  though  there 
might  be  diseases  of  the  eyes  of  horses  with  which  he  was  unacquainted  :  held 
that  the  witness  might  be  examined  :  House  v.  Fort,  4  Blackf.  293.  G. 

See  ante,  p.  96,  note  1. 


177  EXAMINATION    OF     WITNESSES    IN    CHIEF. 

he  obtains  a  recollection  of  the  facts  themselves  as  distinct  from  the 
memorandum,  his  statement  is  admissible  in  evidence.^  A  witness  is, 
of  course,  competent  to  testify  as  to  his  actual  present  recollection  of 
a  fact,  although  in  the  interval  his  memory  may  have  failed,  and  al- 
though such  defect  and  the  means  of  restoration  may  be  the  subject  of 
comment  in  cases  to  Avhich  any  suspicion  is  attached.  The  law,  how- 
ever, goes  further,  and  in  some  instances  permits  a  witness  to  give  evi- 
dence as  to  a  fact,  although  he  has  no  present  recollection  of  the  fact 
itself.  This  happens  in  the  first  place  where  the  witness,  having  no 
longer  any  recollection  of  the  fact  itself,  is  yet  enabled  to  state  that  at 
some  former  time,  and  whilst  he  had  a  perfect  recollection  of  that  fact, 
he  committed  it  to  writing.  If  the  witness  be  correct  in  that  which  he 
positively  states  from  present  recollection,  viz.,  that  at  a  prior  time  he 
had  a  perfect  recollection,  and  having  that  recollection,  truly  stated  it 
in  the  document  produced,  the  writing,  though  its  contents  are  thus  but 

'  Feeter  v.  Heath,  1 1  Wend.  478.  It  is  proper  for  a  witness,  who  swears  to 
the  correctness  of  his  notes  of  a  transaction,  and  that  without  them  his  recollec- 
tion of  the  facts  is  indistinct,  to  read  those  notes  to  the  jury :  Rogers  v.  Burton 
et  al.,  Peck  108.  A  witness  will  be  permitted  to  refer  to  a  summary  of  his  testi- 
mony given  on  a  former  trial  for  the  purpose  of  reviving  his  recollection  :  Rioi'- 
don  V.  Davis,  9  La.  242.  But  a  witness  for  plaintiff  has  no  right  to  refresh 
his  memory  by  reference  to  the  plaintiffs  books,  when  it  does  not  appear  that  the 
entries  were  made  by  the  witness  :  Parguad  v.  Guiee,  Adv.  6  La.  77.  G. 

See  further  Welcome  v.  Batchelder,  10  Shep.  85  ;  Vastbinder  v.  Metcalf,  3  Ala. 
100 ;  Lawrence  v.  Bates,  5  Wend.  301  ;  Owings  v.  Shannon,  1  A.  K.  Marsh.  188  ; 
Columbia  v.  Harrison,  2  Kep.  Const.  Ct.  213  ;  Babh  v.  Clemson,  12  S.  &  R.  328  ; 
Kei/  V.  Lynn,  4  Litt.  338;  Kendall  v.  Stone,  2  Sandf.  .Sup.  Ct.  269;  Neil  v. 
Childs,  10  Ired.  195 ;  Rutherford  v.  Branch  Bank,  14  Ala.  92 ;  Huff  v.  Bennett, 
2  Sel.  337  ;  State  v.  Lull,  37  Me.  246  ;  George  v.  Loy,  19  N.  H.  544.  The  book 
or  paper  used  to  refresh  memory  need  not  be  produced  at  the  trial :  Homeland  v. 
Sheriff  of  Queen' s  County,  5  Sandf.  219;  State  v.  Cheek,  13  Ired.  114.  Contra, 
Harrison  v.  Middleton,  11  Gratt.  527.  For  other  cases  as  to  refreshing  memory 
by  writings,  see  Peck  v.  iMke,  3  Lans.  136  ;  Mcackam  v.  Pill,  51  Barb.  65 ;  Pur- 
chase v.  Mattison,  2  Rob.  71 ;  Pinney  v.  Andrus,  41  Vt.  631  ;  Williams  v.  Miller, 
1  Wash.  Ter.  105  ;  State  v.  Bacon,  41  Vt.  526  ;  Godden  v.  Pierson,  42  Ala.  370 ; 
Seaverns  v.  Trihley,  48  111.  195;  Watkins  v.  Wallace,  19  Mich.  57;  Spiker  v. 
Nyedigger,  30  Md.  315;  Dugan  v.  Mahoney,  11  Allen  572;  Prather  v.  Pritchard, 
20  M<1.  65;  Schittler  v.  Jones,  20  ^Vis.  412;  Sclover  v.  Rexford's  Ex.,  2  P.  F. 
Smitli  308  ;  Wilde  v.  Hexter,  50  Barb.  448  ;  Haach  v.  Fearing,  5  Rob.  528  ;  State 
V.  Tayliir,  3  Orog.  10.  A  memorandum  becomes  evidence  only  when  the  witness 
i.s  iiuiible  after  examination  to  state  the  particulars  from  recollection,  and  when 
lie  can  swear  that  he  knew  it  to  be  correct  at  the  time  it  was  made :  Kelsea  v. 
Fletcher,  48  N.  II.  282;  Parsons  v.  Manufaclnrers'  Lis.  Co.,  82  Mass.  463.  The 
opposite  party  has  the  right  to  inspect  the  memorandum  :  McKivitt  v.  Cone,  30 
Iowa  455. 


OPINION — GENERAL    RESULTS.  177 

mediately  proved,  must  be  true.  Sucli  evidence,  tliough  its  reception 
be  warranted  by  sound  principles,  is  not  in  *ordinary  cases'  |-^-,-^-i 
as  strong  and  satisfactory  as  immediate  testimony,  for  in  such  '-  -I 
cases,  the  witness  professing  to  have  no  recollection  left  as  the  facts 
themselves,  there  is  less  opportunity  for  cross-examination,  and  fraud 
is  more  easily  practised.^ 

There  is  also  a  class  of  cases  where  the  testimony  of  a  witness  is 
admissible  to  prove  a  fact,  although  he  has  neither  any  recollection 
of  the  fact  itself,  nor  mediate  knowledge  of  the  fact,  by  means  of  a 

*  See  R.  V.  St.  Martin's,  Leicester,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  210.  In  many 
cases,  such  as  where  an  agent  has  been  emijloyed  to  make  a  plan  or  map,  and 
has  lost  the  items  of  actual  admeasurement,  all  he  can  state  is,  that  the  plan  or 
map  is  correct,  and  has  been  constructed  from  materials  which  he  knew  at  the 
time  to  be  true ;  and  see  Home  v.  Mackenzie,  post,  p.  182,  n.  [g). 

^  When  a  witness,  of  his  own  free  will  and  accord,  draws  up  a  memorandum 
or  has  it  drawn  up  under  his  immediate  direction  at  the  time  of  the  fact,  or 
soon  afterwards,  for  the  purpose  of  preserving  the  memory  of  it,  he  may  adopt 
its  contents  as  his  testimony ;  although  at  the  time  of  testifying  he  recollects 
nothing  further  than  that  he  had  accurately  reduced  or  procured  to  be  reduced 
the  whole  transaction  to  writing.  But  if  the  paper  was  draAvn  up  weeks  after 
the  fact  occurred,  or  if  it  was  drawn  up,  or  procured  to  be  drawn  up,  by  the 
party  in  whose  favor  the  witness  is  called  to  give  evidence,  he  cannot  be  allowed 
to  testify  to  its  contents,  if  he  does  not  recollect  them  independently  of  the 
paper :  0'' Neal  v.  Walton,  1  Richardson  234.  AVhere  ship  timber  was  sold, 
without  being  scheduled  or  set  apart  from  similar  timber  with  which  it  was 
mingled,  a  witness  called  to  identify  the  timber  who  was  unable  to  do  it  except 
by  a  schedule  made  some  months  after  the  sale,  and  even  with  that  having  no 
present  recollection  of  the  articles  enumerated,  was  admitted  :  Glover  v.  Han- 
newell,  6  Pick.  222;  Downes  v.  Eoioell,  24  Vt.  343;  Seavyv.  Dearborn,  19  N.  H. 
351;  Webster  V.  Clark.  10  Fost.  245 ;  State  y.  Cohoell,  3  R.  I.  132;  Tuttle  v. 
Robinson,  33  N.  H.  104;  Bartlett  v.  Hoyt,  Ibid.  151  ;  Halsey  v.  Sinsebaugh,  1 
Smith  (N.  Y.)  4S5  ;  Heart  y.  Hammell,  3  Barr414.  Contra,  Reddoii  v.  Spruance, 
4  Ilarring.  217.  A  witness  to  refresh  his  memory  may  use  a  memorandum  not 
made  by  himself,  when,  after  seeing  it,  he  can  recall  the  facts  stated  in  it,  and 
testify  to  them  as  matters  of  present  recollection :  Hill  v.  State,  17  Wis.  675. 
A  witness  may  use  a  memorandum  to  refresh  his  recollection,  although  it  was 
not  made  by  himself,  if  he  saw  the  paper  while  the  facts  therein  stated  were  fresh 
in  his  recollection  and  he  can  say  that  he  then  knew  they  were  correctly  stated  : 
Coffin  V.  Vincent,  12  Cush.  98  ;  Green  v.  Canlk,  16  Md.  556.  Where  a  witness  has  no 
recollection  of  a  fiict  independently  of  a  memorandum  in  his  handwriting  and 
made  in  the  usual  course  of  his  business,  it  is  sufficient  to  authorize  its  being 
read  in  proof  of  any  fact  which  it  would  establish :  Taylor  v.  Stringer,  1  Hilt. 
377  ;  Martin  v.  Good,  14  Md.  398  ;  Spring  Ins.  Co.  v.  Evans,  15  Md.  54 ;  Guy 
V.  Mead,  22  N.  Y.  462 ;  Fitzpatrick  v.  Fitzpatrick,  6  R.  I.  64 ;  Briggs  v.  Raf- 
ferty,  14  Gray  525 ;  Marely  \.  Shults,  29  N.  Y.  346;  Mints  y.  Slurdevant,  36 
Ala.  636.     Contra,  People  v.  Elyca,  14  Cal.  144. 


178  EXAMINATION    OF    WITNESSES    IN    CHIEF. 

memorial  of  the  truth  of  which  he  has  a  present  recollection.  This 
happens  where  the  memorandum  is  such  as  to  enable  the  witness  to 
state  with  certainty  that  it  would  not  have  been  made  had  not  the 
fact  in  question  been  true.  Here  the  truth  of  the  evidence  does  not 
wholly  depend  on  the  contents  of  the  document  itself,  or  on  any 
recollection  of  the  witness  of  the  document  itself,  or  of  the  cir- 
cumstances under  which  it  was  made,  but  upon  a  conviction  arising 
from  the  knowledge  of  his  own  habits  and  conduct  sufficiently  strong 
to  make  the  existence  of  the  document  wholly  irreconcilable  with  the 
non-existence  of  the  fact,  and  so  to  convince  him  of  the  affirmative. 

Thus,  in  proving  the  execution  of  a  deed  or  other  instrument  (one 
of  the  most  ordinary  and  cogent  cases  within  this  class)  where  a  wit- 
ness called  to  prove  the  execution  of  a  deed  sees  his  signature  to  the 
attestation,  and  says  he  is  thereby  sure  that  he  saw  the  party  execute 
the  deed,  that  is  a  sufficient  proof  of  the  execution  of  the  deed,  al- 
thouorh  the  witness  should  add  that  he  has  no  recollection  of  the  fact 
r*i  ^Qi  ^^  ^^^  execution  of  the  deed."  The  admission  of  such  *evidence 
is  not  confined  to  attestations  of  the  execution  of  written  in- 
struments.^ A  plaintiif  called  a  bankrupt  in  an  action  against  his 
assignees  to  prove  the  receipt  of  ,£20  by  him  from  the  plaintiff;  the 
witness  stated  that  £20  had  been  received  from  the  plaintiff,  and  not 
carried  to  account.  A  rough  cash-book  of  the  plaintiff's  was  then 
put  into  the  witness's  hands,  containing  the  entry,  "  4th  Nov.,  1.822, 
Debtor,  li.  Lancaster,  check  £20,  M.  L.  ;"  the  witness  then  said, 
"  The  entry  of  £20  in  the  plaintiff's  book  has  my  initials,  written  at 
the  time.  I  have  no  recollection  that  I  received  the  money.  I  know 
nothing  but  by  the  book ;  but,  seeing  my  initials,  I  have  no  doubt 
that  I  received  the  money."  An  objection  made  to  the  reading 
of  the  paper  without  the  stamp  was  overruled.  Lord  Tenterden  being 
of  opinion  that,  though  it  was  not  in  itself  admissible  evidence  to 
prove  the  payment  of  the  money,  the  witness  might  use  it  to  refresh 
his  memory,  and  that  his  saying  he  had  no  doubt  that  he  had  re- 
ceived the  money  was  sufficient  evidence  of  the  fact.  On  motion  for 
a  new  trial,  Lord  Tenterden  said,  "  Here  the  witness,  on  seeing  the 
entry  signed  by  himself,  said  he  had  no  doubt  that  he  had  received 
the  money.  The  paper  itself  was  not  used  as  evidence  of  the  receipt 
of  the  money,  but  only  to  enable  the  witness  to  refresh  his   memory, 

"  Per  Baylcy,  .!.,  in  Maiiijliam  v.  Hubbard,  8  B.  &  C.  (15  E.  C.  L.  R.)  14  ;  and 
8ce  liriiHjInc  V.  (j'oodfiou,  r)'Bing  N.  C.  (.''.5  E.  C.  L.  R.)  738. 
'  I  hid. 


REFRESHING    MEMORY.  179 

and  when  he  had  said  that  he  had  no  doubt  that  he  had  received  the 
money,  there  was  sufficient  parol  evidence  to  prove  the  payment." 

It  is  of  course  essential  that  the  witness  shouhl  be  enabled,  upon 
seeing  the  memorandum  or  other  entry,  to  swear  positively  to  the 
truth  of  the  fact,  although  he  has  no  present  independent  recollection 
of  it.y 

It  is  not  essential  that  the  memorandum  should  have  been  con- 
temporary with  the  fact.  It  seems  to  be  sufficient  if  it  has  been 
made  by  the  witness,  or  by  another  with  his  *privity,  at  a 
time''  when  the  facts  were  fresh  in  the  recollection  of  the  L  '-  J 
witness,  and  that  the  reading  such  memorandum  restores  the  recol- 
lection of  the  fact  which  had  faded  in  the  memory,*  or  enables  him 
to  swear  to  the  truth  of  the  fact.^  Neither  is  it  necessary  that  the 
paper  should  have  been  written  by  the  witness  himself,  provided  he 
recollects  having  seen  it  when  his  memory  as  to  the  facts  was  still 
fresh,  and  he  remembers  that  he  then  knew  the  statement  to  be  cor- 
rect.'' ^     A  deposition  formerly  made  by  an  aged  witness  was  allowed 

y  R.  V.  St.  Martin's,  Leicester,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  210  ;  Maugham  v. 
Hubbard,  8  B.  &  C.  (15  E.  C.  L.  R.)  14. 

^  Wood  V.  Cooper,  1  Car.  &  K.  (47  E.  C.  L.  R.)  645 ;  Smith  v.  Morgan,  2  M. 
&  Rob.  257.  In  the  case  of  Sandwell  v.  Sandicell,  Comb.  445,  Lord  Holt  is  re- 
ported to  have  said,  that  the  memorandum  must  have  been  made  presently  : 
and  in  Whitfield  v.  Aland,  2  Car.  &  K.  (61  E.  C.  L.  R.)  1015,  it  was  held  that 
the  entry,  if  not  contemporaneous,  should  be  nearly  so,  and  if  it  has  been  made 
at  some  time  subsequently  at  the  instigation  of  the  party  or  his  attorney,  the 
witness  will  certainly  not  be  allowed  to  use  it:  Steinkeller  v.  Neioton,  9  Car.  & 
P.  (38E.  C.  L.  R.)  313. 

*  Tanner  v.  Taylor,  3  T.  R.  754 ;  8  East  284  ;  Doe  v.  Perkins,  3  T.  R.  749 ; 
Sandicell  v.  Sandicell,  Comb.  445 ;  Bambert  v.  Cohen,  4  Esp.  C.  213  •,  Duchess  of 
Kingston's  case,  20  How.  St.  T.  355  ;  Henry  v.  Lee,  2  Chit.  124  ;  Jones  v.  Stroud, 
2  C.  &  P.  (12  E.  C.  L.  R.)  196 ;  R.  v.  Hedges,  28  How.  St.  T.  1367.  So  a 
person  who  has  from  time  to  time  examined  entries  in  a  log-book,  whilst  the 
events  were  fresh  in  his  recollection,  may  refer  to  the  book  to  refresh  his 
memory  when  examined  as  to  a  fact  recorded  there,  and  which  he  remembers  to 
have  seen  there  when  he  had  a  clear  recollection  of  the  circumstances  :  Bur- 
rough  V.  Martin,  2  Camp.  112. 

^  Burton  v.  Plummer,  2  Ad.  &  Ell.  (29  E.  C.  L.  R.)  341 ;  Burrough  v.  Martin, 

^  A  witness  will  be  allowed  to  refer  to  a  report  of  experts  of  whom  he  was 
one  which  has  been  set  aside,  for  the  purpose  of  refreshing  his  memory,  when 
the  fact  to  be  proved  was  what  estimate  he  had  put  on  the  work  done,  the 
reference  being  as  to  a  memorandum  deliberately  made  at  the  time  :  Riorden  v. 
Davis,  9  La.  R.  242.     See  also  Glover  v.  Hunnewell,  6  Pick.  222. 

^  In  South  Carolina,  it  is  held,  that  when  a  witness  has  made  a  memorandum 
at  the  time  of  the  happening  of  certain  facts,  for  the  purpose  of  perpetuating 


180  EXAMINATION    OF    AVITNESSES    IN     CHIEF. 

to  be  read  to  him  at  the  trial,  in  order  to  refresh  his  memory;"  and 

where  a  *witness  who   had  received   money,  and  mven  a  re- 

[*1811  •         • 

-■    ceipt  for  it  which  could  not  be  read  in  evidence  for  want  of  a 

proper  stamp,  had  become  blind,  the  receipt  was  read  to  him  in 
court  for  a  similar  purpose."*  And  where  the  plaintiff  had  entered  an 
account  in  writing  of  goods  and  money  from  time  to  time  forwarded 
to  the  defendant,  and  the  defendant  had,  by  his  signature  at  the 
foot  of  each  page,  admitted  the  truth  of  the  items,  but  the  writing 
itself  could  not  be  given  in  evidence  for  Avant  of  receipt  of  stamps,  as 
the  cash  items  in  each  page  exceeded  40s.,  yet  it  was  held  that  the 
plaintiff  might  prove,  that  upon  calling  over  each  article  to  the  de- 
fendant he  admitted  the  receipt,  and  that  the  witness  who  heard  him 
mio-ht  refresh  his  memory  by  referring  to  the  account.®  So  where 
a  person  employed  to  let  lands  read  over  the  terms  to  the  defendant 
from  a  written  paper,  he  was  allowed  to  refresh  his  memory  by  that 
document.^ 

2  Camp.  C.  112;  Jacob  v.  Lindsay,  1  East  460;  Howard  v.  Caiifield,  5  Dowl. 
417  ;  Henry  v.  Lee.  2  Chit.  124;  Duchess  of  Kingston's  case,  20  IIow.  St.  T.  619. 
A  witness  may  refresh  his  memory  from  notes  of  counsel  taken  at  a  former  trial : 
Lawes  v.  Eeed,  2  Lew.  C.  C.  152.  But  Lord  Tenterden  would  not  allow  the 
memory  of  a  witness,  who  had  denied  that  he  had  been  sentenced  to  imprison- 
ment in  France,  to  be  refreshed  by  showing  him  a  copy  of  the  sentence  of  the 
French  court:  Meagoe  v.  Simmons,  3  Car.  &  P.  (14  E.  C.  L.  R.)  75. 

"  Vaughan  v.  Martin,  1  Esp.  C.  440 ;  Doe  v.  Perkins,  3  T.  R.  749 ;  but  see  2 
M,  &  Rob.  257.  A  witness  was  allowed  to  refer  to  his  deposition  taken  before 
commissioners  of  bankruptcy,  to  refresh  his  memory  as  to  date  :  Wood  v.  Cooper, 
1  C.  &  K.  (47  E.  C.  L.  R.)  645  ;  but  not  to  go  through  the  whole  :  Smith  v. 
Morgan,  2  M.  &  Rob.  257.  Whether  in  a  criminal  case  the  prisoners  counsel 
may  ofiFer  a  deposition  to  a  witness  on  examination  to  refresh  his  memory, 
qucere.  Denied  by  Parke,  B.,  and  Coltman,  J.,  York  S.  Assizes,  1837.  Ad- 
mitted by  Patteson,  J.,  at  a  former  assizes;  and  in  a  subsequent  case  at  the 
same  assizes,  admitted  by  Parke,  B.,  and  Coltman,  J. — Mr.  Starkie's  Note,  3d 
edit.,  vol.  i.,  p.  601. 

"  Catt  V.  Howard,  3  Stark.  C.  (3  E.  C.  L.  R.)  3.  Where  a  witness  to  prove 
the  receipt  of  money,  after  having  denied  all  recollection  of  it,  was  shown  a 
written  entry  with  his  initials,  and  then  said  he  had  no  doubt  of  his  having  re- 
ceived the  money  ;  held  that  it  was  not  necessary  such  paper  should  be  stamped, 
after  being  looked  at  to  refresh  his  memory  ;  the  parol  evidence  to  prove  the 
payment  was  sufficient :  Maugham  v.  Hubbard,  8  B.  &  C.  (15  E.  C.  L.  R.)  14. 

"  Jacob  V.  Lindsay,  1  East  460 ;  supra,  tit.  Stamp. 

'  Lord  Bolton  v.  Tomlin,  5  Ad.  &  E.  (31  E.  C.  L.  R.)  856. 

the  memory  of  them,  and  can  at  a  subsequent  period  swear  that  he  made  the 
entry  at  the  time  for  that  purpose  and  that  he  knows  from  that  memorandum 
that  the  facts  did  exist,  it  will  be  good  evidence,  though  the  witness  does  not 
retain  a  distinct  recollection  of  the  facts  themselves  ;  and  the  rule  is  the  same  in 
criminal  as  in  civil  cases  :  State  v.  liawle,  2  N.  »fc  McC.  331.  M. 


REPRESIIING     MEMORY.  181 

Whether  the  writing  be  used  merely  as  an  instrument  for  restoring 
the  recollection  of  a  fact,  or  be  oifered  to  be  read  as  containing  a 
true  account  of  particulars  entirely  forgotten,  it  must,  in  conformity 
with  the  general  principle  *of  evidence,  be  the  best  for  the  p  ^iqqi 
purpose  that  the  case  admits  of.  For  although  it  be  plain 
that  if  the  recollection  of  a  forgotten  fact  be  completely  restored, 
the  means  of  restoration  are  immaterial,  yet,  where  the  questions 
are,  whether  knowledge  of  the  flict  once  existed,  and  whether  it  will 
be  restored  by  the  means  proposed,  it  is  obvious  that  such  restoration 
is  more  likely  to  be  accomplished  by  a  genuine  than  by  a  false,  or 
even  imperfect  memorandum,  and  that  a  false  suggestion  made  by 
such  means  is  more  likely  to  create  an  erroneous  than  to  restore  a 
correct  impression.  The  general  principle,  therefore,  operates  to  the 
exclusion  of  the  inferior  evidence.  Where  the  object  is  not  to  restore 
recollection,  but  to  get  at  the  contents  of  a  writing,  on  the  ground 
that  the  witness  knows  those  contents  to  be  true,  it  is  in  effect  to 
give  the  writing  in  evidence,  and  consequently  to  give  force  to  the 
objection  that  it  is  not  the  best  evidence  the  case  admits  of.  Two 
steps  are  essential  in  such  a  case  to  the  truth  of  the  conclusion  ;  first, 
that  the  witness  knows  that  the  fact  was  truly  stated  on  a  former 
occasion  in  some  particular  document ;  secondly,  that  the  document 
produced  contains  that  statement ;  and  the  best  evidence  of  this  is  by 
the  production  of  the  original  document.  In  conformity  with  this 
principle,  it  has  been  held  that  a  mere  copy  of  a  writing,^  r*18^1 
*although  made  by  the  witness  himself,  cannot  be  used  for 
the  purpose.'' 

^  The  rule  does  not  extend  to  the  exclusion  of  a  duplicate  original,  and  in 
practice  a  witness  is  admitted  to  refresh  his  memory,  as  to  items  of  goods  de- 
livered, by  a  copy  recently  taken  by  him  from  a  shop-book,  or  other  documents 
of  his  own  writing,  or  written  with  his  knowledge.  And  where  A.  having  made 
a  survey  furnished  a  report  to  his  employers,  and  being  afterwards  called  as  a 
witness  produced  a  printed  copy  of  it,  in  the  margin  of  which,  he  had,  two  days 
before,  to  assist  him  in  giving  explanation,  made  some  jottings,  and  this  report 
was  made  up  from  his  original  notes,  and  was  in  substance,  though  not  in  words 
a  transcript  of  them,  the  House  of  Lords  held  that  he  might  look  at  such  printed 
copy  to  refresh  his  memory  :  Home  v.  Mackenzie,  6  CI.  &  Fin.  628.  And  where 
an  editor  of  a  newspaper  swore  that  A.  wrote  the  article  in  question,  but  the 
MS.  had  been  been  lost,  and  A.  stated  that  he  had  been  in  the  habit  of  writing 
such  articles,  and  that  they  were  all  true,  but  he  did  not  recollect  the  article  in 
question;  he  was  allowed  by  Rolfe,  B.,  to  refresh  his  memory  with  the  newspa- 
per :   Topham  v.  M'Gregor,  1  C.  &  K.  (47  E.  C.  L.  R.)  320. 

"  In  the  case  of  Burton  v.  Plummer,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  348  ;  Patte- 
son,  J.,  observed  :  "  The  copy  of  an  entry  not  made  by  the  witness  contempo- 
raneously, does  not  seem  to  me  to  be  admissible  for  the  purpose  of  refreshing  a 
witness's  memory.     The  rule  is,  that  the  best  evidence  must  be  produced,  and 


183  EXAMINATION    OF    WITNESSES    IN    CHIEF. 

In  analogy  to  the  ordinary  rules  of  documentary  evidence,  a  copy 
may  be  used  to  refresh  the  memory,  on  proof  that  the  original  lias 
been  lost.  Yet,  in  one  instance,  it  was  held'  that  a  copy  made  by 
r*18dT  ^^^^  witness  himself  six  *months  after  the  fact,  from  his  own 
memorandum  made  at  the  time  of  the  fact,  could  not  be  used, 
although  the  witness  swore  that  the  original  was  lost,  and  was  at  the 
time  of  the  loss  illegible,  being  covered  with  figures. 

"Where  a  witness  refreshes  his  memory  from  memoranda,  it  is  usual 
and  reasonable  that  the  adverse  counsel  should  have  an  opportunity 
of  inspecting  them''  for  the  purpose  of  cross-examining  the  wit- 
that  rule  appears  to  me  to  be  applicable,  whether  a  paper  be  produced  as  evi- 
dence in  itself,  or  to  be  used  merely  to  refresh  the  memory.  In  the  case  of  Doe 
V.  Perkins,  3  T.  R.  752,  Lord  Kenyon  cited  a  case  in  Chancery,  where  a  motion 
was  made  to  suppress  a  deposition  on  a  certificate  from  the  commissioners  that 
the  witness  refreshed  her  memory  by  minutes  consisting  of  six  sheets  of  paper 
of  her  own  handwriting,  the  substance  of  which  she  declared  she  had  set  down 
from  time  to  time  as  the  facts  occurred  to  her  memory  ;  that  five  of  the  six  sheets 
were  drawn  up  in  the  form  of  a  deposition  by  the  plaintiff's  solicitor,  whom  she 
had  requested  to  digest  her  notes,  and  reduce  them  to  some  order  ;  and  that,  after 
he  had  done  so,  she  transcribed  and  altered  them  wherever  it  was  necessary  to 
make  them  consistent  with  her  meaning,  and  that  the  Lord  Chancellor,  in  giving 
judgment,  said  :  "  Should  the  Court  connive  at  proceedings  like  these,  deposi- 
tions would  really  be  no  better  than  afiidavits,  for  should  a  witness  be  permitted 
to  use  a  paper,  especially  one  drawn  up  by  the  attorney  of  one  of  the  parties, 
though  from  memoranda  furnished  by  the  witness,  I  might  as  well  let  the  attor- 
ney draw  an  aflSdavit  for  her,  and  use  that  instead  of  a  deposition.  To  be  sure, 
in  some  cases,  a  man  may  use  papers  at  law,  but  I  have  known  some  judges 
(and,  I  think,  I  adhered  chiefly  to  that  rule  myself)  let  them  use  only  papers 
drawn  up  as  the  facts  happened,  and  all  other  papers  I  have  bid  them  put  in 
their  pockets ;  and  if  any  had  been  offered  which  had  been  drawn  by  the  attor- 
ney, I  should  have  reprimanded  him  severely.  As  to  dates  and  names,  which 
are  merely  technical,  it  is  quite  another  thing."  In  Solomons  v.  Campbell,  cor. 
Abbott,  J.,  Sitt.  after  Mich.  1822,  also,  a  witness  was  not  allowed  to  refresh  his 
memory  by  a  copy  taken  from  a  shopbook,  neither  of  the  entries  having  been 
written  by  himself. 

'  Jones  v.  Stroud,  2  C.  &  P.  (12  E.  C.  L.  R.)  19G ;  and  see  Burton  v.  riummer, 
2  Ad.  &  E.  (29  E.  C.  L.  R.)  343  ;  and  also  contra,  Wood  v.  Cooper,  1  C.  &  K.  (47 
E.  C.  L.  R.)  046 ;  E.  v.  Kinloch,  25  How.  St.  T.  937. 

''  Where  a  party  possessed  the  means,  the  recollection  of  the  witness  would  of 
course  be  refreshed  before  the  trial,  and  then  if  he  testified  as  to  his  having  an 
actual  present  recollection  of  the  fact,  it  would  of  course  be  unnecessary,  as  re- 
gardH  his  testimony  in  chief,  to  refer  to  the  moans  by  which  his  recollection  was 
n-stored  after  it  had  once  been  lost.  Where  such  means  were  wanting,  or  the 
defect  was  not  anticipated,  the  attempt  may  be  made  as  above  stated,  at  the  trial ; 
but  as  the  license  might  be  used  for  the  purpose  of  putting  leading  (questions  or 
Buggestions  in  the  most  objectional  form,  and  facility  might,  by  such  means,  be 
given  to  fraudiibjiit  ti'stiiiiony,  it  is  expedient  that  opportunity  should  be  aObrded 
for  the  prevention  of  abuse. 


HEARSAY.  184 

nesses ;'  and  he  is  entitled   to  cross-examine  not  only  as  to  the  par- 
ticular part  referred  to,  but  as  to  other  parts  of  the  entry.'" 

Where  the  memory  of  a  witness  has  been  refreshed  previous  to  the 
trial,  it  is  not  necessary  that  the  Avriting  by  means  of  which  this  was 
done  should  be  produced  at  the  trial ;°  the  omission  to  produce  it 
would  of  course  afford  matter  for  observation.  Where  the  witness  has 
no  distinct  recollection  of  a  fact  independently  of  the  writing,  the 
writing  itself  must  be  produced." 

*A  witness  may  also  in  some  instances,  on  principles  which 
have  already  been  adverted  to,  be  examined  as  to  what  he    '-         ^ 

'  Per  Eyre,  C.  J. ;  Hardi/'s  case,  24  Howell's  St.  Tr.  824 ;  R.  v.  Ramsden,  2  C. 
&  P.  (12  E.  C.  L.  R.)  603  ;  Sinclair  v.  Stemnson,  1  C.  &  P.  (12  E.  C.  L.  11.)  582-, 
see  Howard  v.  Caiijield,  5  Dowl.  P.  C.  417.  But  if  the  question  founded  upon 
the  memoranda  wholly  fail,  the  adverse  counsel  has  no  right  to  see  them  :  Reg. 
V.  Dunconihe,  8  0.  &  P.  (34  E.  C.  L.  R.)  309. 

""  Lloi/d  V.  Frcshjield,  2  C.  &  P.  (12  E.  C.  L.  R.)  325.  But  if  he  cross-examine 
as  to  other  entries  in  the  same  book,  he  makes  them  his  own  evidence :  Grcjory 
V.  Tavernor,  6  Car.  &  P.  (25  E.  C.  L.  R.)  280. 

"  See  Kensington  v.  Inglis,  8  East  273. 

°  Doe  V.  Perkins,  3  T.  R.  749.  The  question  was,  at  what  time  the  annual 
holding  of  several  tenants  expired.  Aldridge  had  gone  round  with  the  receiver 
of  the  rents  to  the  difi'erent  tenants,  whose  declarations  as  to  their  times  of  entry 
were  noted  down  in  a  book,  some  by  Aldridge  and  some  by  the  receiver.  Al- 
dridge was  examined  as  to  these  declarations,  the  original  book  not  being  in 
court ;  he  admitted  that  he  had  no  recollection  on  the  subject,  except  from  ex- 
tracts made  by  him  from  the  book;  and  the  evidence  was  afterwards  held  by 
the  Court  of  K.  B.  to  have  been  inadmissible. 

In  the  above  case,  that  of  Tanner  v.  Taylor  was  cited,  which  had  been  decided 
by  Legge,  B.,  Hereford  Spring  Assizes,  1751  ;  where,  in  an  action  for  goods  sold 
and  delivered,  the  witness  who  proved  the  delivery  took  it  from  an  account 
which  he  had  in  his  hand  ;  being  a  copy,  as  he  said,  of  the  day-book  which  he 
had  left  at  home  5  and  Mr.  Baron  Legge  held,  that  if  he  could  swear  positively 
to  the  delivery  from  recollection,  and  the  paper  was  only  to  refresh  his  memory, 
he  might  make  oath  of  it;  but  if  he  could  not  from  recollection  swear  to  the 
deliveries  any  further  than  as  finding  them  entered  in  his  book,  then  the  original 
should  have  been  produced  ;  and  the  witness  saying  he  could  not  swear  from 
recollection,  the  plaintiff  was  nonsuited.  In  Beeck  v.  Jones,  5  C.  B.  (57  E.  C.  L. 
R.)  696,  a  banker's  clerk  was  called  to  give  secondary  evidence  that  a  bill  was 
made  payable  at  Mold.  He  stated  that  on  the  preceding  day  he  had  looked  at 
an  entry  in  his  own  handwriting,  made  when  the  bank  received  the  bill,  which 
had  been  redelivered  to  the  defendant,  which  entry  described  the  bill  as  payable 
at  Mold ;  but  he  admitted  that  he  had  no  recollection  whatever  of  the  bill  or 
its  contents,  save  what  he  derived  from  the  entry.  The  book  not  being  pro- 
duced, it  was  objected  that  evidence  in  its  absence  was  not  admissible;  but 
Coltman,  J.,  having  admitted  it,  the  Court  of  C.  P.  granted  a  new  trial,  on  the 
authority  of  Doe  v.  Perkins.  And  see  a  case  cited  from  Lord  Ashburton's  note, 
3  T.  R.  652:  Rex  v.  Duchess  of  Kingston,  20  How.  St.  Tr.  355;  8  East  289; 
Kensington  v.  Inglis,  8  East  273  ;  Hedge's  case,  28  How.  St.  Tr.  1367. 


185  EXAMINATION    OF    WITNESSES    IN     CHIEF. 

has  heard  from  others  ;  and  evidence  of  this  nature  is  either  orifjinal 
evidence,  which  is  admissible  without  previous  proof  to  warrant  it,  or 
is  merely  secondary,  and  admissible  onlj  on  failure  of  some  other 
and  superior  evidence  which  is  no  longer  attainable.  Of  the  first  de- 
„^_,  scription  is  evidence  of  reputation,  of  declarations  *which  ac- 
*-  -■  company  and  explain  material  facts,  and  of  declarations 
made  by  the  adverse  party  in  the  cause. ^ 

Evidence  of  reputation,  subject  to  the  limitations  already  stated,'' 
is  admissible  upon  questions  as  to  the  boundaries  of  parishes,  manors, 
or  other  districts  in  which  many  persons  possess  an  interest;''^  upon 

p  See  tit.  Admissions. 

1  It  will  be  seen,  from  what  has  already  been  observed  on  this  subject,  that 
the  term  reputation,  as  denoting  a  class  of  evidence,  has  acquired  a  technical 
sense,  which  differs  in  some  respects  from  the  ordinary  sense  of  the  term,  and 
includes  all  evidence,  whether  oral  or  written,  which  on  principles  already  ad- 
verted to  is  admissible  to  prove  matters  of  public  and  general  interest. 

The  cases  on  this  subject  will  be  found  under  the  heads  of  Reputation — Pedi- 
gree— Prescription — Highway — Common — Manor,  and  other  particular  titles 
to  which  the  decisions  relate. 

■■  See  Vol.  II.,  tit.  Custom.  Hearsay  evidence  is  admissible  on  a  question  of 
parochial  or  manorial  boundary,  although  the  persons  who  have  been  heard  to 
speak  of  the  boundary  were  parishioners,  and  claimed  rights  of  common  on  the 
very  wastes  which  their  declarations  have  a  tendency  to  enlarge :  NicJiolls  v. 
Parker,  14  East  331  -,  Brisco  v.  Lomax,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  198  ;  Evans 
V.  Rees,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  151  ;  Thomas  v.  Jenkins,  6  Ad.  &  E.  (33 
E.  C.  L.  R.)  525.  So  on  a  question  of  boundary  between  old  and  new  land  in 
a  manor :  Barnes  v.  Mawson,  1  M.  &  S.  77. 

Where,  in  trespass  for  levying  a  distress  for  rates  claimed  to  be  due  on  lands  in 
the  parish  A.,  the  question  was  whether  they  were  situate  in  that  or  the  adjoining 
parish  B. ;  it  was  held,  that  being  a  question  of  boundary,  in  which  reputation  was 
admissible,  leases  granted  by  the  deceased  ancestors  of  the  plaintiff's  landlord, 
describing  the  land  to  be  situated  in  £.,  were  properly  received  in  evidence  ;  also 
that  the  accounts  of  deceased  overseers  of  B.,  to  which  the  tenants  of  the  lands 
were  successively  assessed,  and  against  whose  names  crosses  were  made,  were 
admissible  in  evidence  of  payment  of  such  rates  by  them,  as  a  common  mode  of 
denoting  payment:  Plaxton.  v.  Dare,  10  B.  &  C.  (21  E.  C.  L.  R.)  17.  A  book  of 
leases  of  the  Dean  and  Chapter,  kept  in  the  chapter-house,  is  evidence  as  repu- 
tation on  a  question  of  boundary :  Coombs  v.  Coether,  M.  &  M.  (22  E.  C.  L.  R.) 
398.  Upon  the  (luestion,  whether  a  particular  place  be  parcel  of  a  parish,  old 
entries  made  by  a  churchwarden,  not  charging  himself,  relating  to  the  repairs 
of  a  chapel  alleged  to  belong  to  tlie  place  in  question,  are  not  admissible  :  Cooke 
v.  Bankf's,  2  C.  &  P.  (12  E.  C.  L.  K.)  478.  But  orders  of  Justices  at  Sessions 
are  evidence  to  prove  a  district  to  be  parcel  of  a  hundred:  Duke  of  Neivcastle  v. 
Hundred  of  Broxtowe,  4  B.  &  Ad.  (21  E.  C.  L.  R.)  273.  Such  evidence  is  not, 
liowever,  evidence  to  prove  the  boundary  of  a  private  estate  :   Clothier  v.  Chap- 

'  Gcri<;ral  rcrputatioii  is  a<lmiHsil)l(!  as  evidence  is  cases  of  boundary:  Standin 
v.  Bains,  1  JIayw.  238  ;  Talc  v.  Southard,  1  Hawks.  45  ;  Beard's  Lessee  v.  Talbot, 


REPUTATION.  187 

questions  *relatino;'  to  the  rio;lits  of  common  *  oi*  other  cus-    ^ 
ternary  rights"  or  obligations,  upon  questions  as  to  public  high-    L         -^ 

ma7i,  14  East  331,  n. ;  Dunnison  v.  Elsley,  3  Ea^!;.  &  Yo.  Ti^he  Cases  1393, 
where  the  testimony  of  a  witness  derived  from  hearsay  as  to  the  extent  of 
boundaries  and  parcels  of  an  estate  was  rejected  ;  though  in  Davies  v.  Lewis,  2 
Chitty  (18  E.  C.  L.  11.)  35,  hearsay  evidence  was  admitted  upon  the  question 
whether  a  particular  place  was  parcel  of  a  sheep-walk.  As  this,  however,  was 
a  question  of  mere  private  rij^ht,  the  authority  of  this  case  seems  to  be  very 
doubtful.  And,  in  Thomas  v.  Jenkins,  6  Ad.  &  E,  (33  E.  C.  L.  II.)  525,  where 
the  boundary  of  an  estate  was  proved  to  be  the  same  as  that  of  two  hamlets, 
the  courts  held,  that  though  reputation  would  not  have  been  admissible  as  evi- 
dence to  prove  the  ])Oundaries  of  the  estate,  per  se,  yet  it  was  evidence  to  prove 
the  boundaries  of  the  hamlet,  and  through  that  medium  admissible  :  Steel  v. 
Prickett,  2  Stark.  C.  (3  E.  C.  L.  R.)  4G6. 

^  It  is  evidence  equally  to  prove  or  disprove  the  right  asserted  :  Drinkwuier  v. 
Porter,  7  C.  &  P.  (32  E.  C.  L.  11.)  181  ;  Marquis  of  Anglesea  v.  Lord  Uatherton 
lOM.  &W.  218. 

*  See  Vol.  II.,  tit.  Common,  where  the  cases  are  set  forth.  A  paper  signed  by 
man}'  deceased  copyholders  of  a  manor,  importing  what  was  the  general  right 
of  common  in  each  copyholder,  and  agreeing  to  restrict  it,  is  evidence  of  repu- 
tation, even  against  other  copyholders  not  claiming  under  those  who  signed  it : 
Chapman  v.  Cotdand,  13  East  10.  So  reputation  is  evidence  of  a  right  of 
common  ^?«r  cause  de  vicinage  between  two  manors  :  Prichard  v.  Powell,  10  Q. 
B.  (59  E.  C.  L.  R.)  589.  But  in  Lord  Dunraven  v.  Llewellyn,  19  L.  J.,  Q.  B. 
388,  the  Court  of  Exchequer  Chamber  held  that  reputation  was  not  admissible 
evidence  on  a  question  as  to  common  appendant,  that  not  being  a  customary, 
but  a  mere  private  right  derived  from  some  grant ;  and  observed  that  the  reasons 
given  for  the  judgment  in  Weeks  v.  Sparks,  1  M.  &  S.  679,  in  which  such  evi- 
dence was  admitted  on  the  like  question,  would  certainly  not  be  satisfactory  at 
the  present  day. 

"  Reputation  is  evidence  on  questions  respecting  general  customs  concerning 
parishes  or  manors,  or  the  inhabitants  of  towns  and  other  places  :  Moreicood  v. 
Wood,  14  East  327,  n.  Thus,  where  it  is  contended  that,  by  the  custom  of  a 
manor,  land  shall  descend  to  the  eldest  female  heir,  general  reputation  of  such 
custom,  and  instances  of  its  having  so  descended  on  some  occasions,  is  evidence 
proper  to  be  left  to  the  jury,  though  the  descent  contended  for  in  the  particular 
instance  is  not  exactly  similar  to  any  of  those  that  are  adduced  in  evidence  ;  as 
where  the  estate  is  claimed  by  the  grandson  of  an  eldest  sister,  and  the  instances 
proved  are  only  of  descents  to  eldest  daughters  and  eldest  sisters  :  Doe  ex  dem. 
Foster  v.  Sisson,  12  East  62.  In  a  suit  between  a  copyholder  and  his  lord,  the 
copyholder  rested  his  case  upon  an  immemorial  custom  of  the  manor,  the  exist- 
ence of  which  the  lord  denied.     At  the  trial  the  lord  produced  the  record  of  a 

Cooke  142.  But  not  to  contradict  record  evidence  on  the  subject:  I^essee  of 
McCay  V.  Galloway,  3  Ohio  282.  So  also  what  has  been  said  by  a  deceased 
person  in  relation  to  a  boundary  is  admissible  as  evidence  :  Caufman  v.  Congre- 
gation of  Cedar  Springs,  G  Binn.  59;  Wolf  y.  Wyeth,  11  S.  &  R.  149.  But 
declarations  respecting  a  boundary  by  a  person  living,  and  who  might  be  pi"0- 
duced,  are  not  evidence  :  Buchanan  v.  More,  10  S.  &  R.  275.  G. 

See  ante,  p.  46,  note  1. 


188  EXAMINATION    OF    WITNESSES     IN     CHIEF. 

ways,^  *questions  of  pedigree/  questions  as  to  riglits  of  toll/ 
L         J    and  of  some  other  questions  of  public  and  general  interest/^ 

suit  by  bill  in  the  Exchequer,  4  W.  &  M.,  wherein  the  parties  litigant  were  de- 
scribed as  lord  and  copyholder  (of  the  same  manor),  and  the  parties  deposinjf 
for  the  copyholder  were  so  described,  that  if  the  description  were  true,  they 
were  legally  competent  to  give  evidence  touching  the  customs  of  the  manor. 
Their  depositions  went  to  prove  a  custom  inconsistent  with  that  relied  upon  by 
the  now  plaintiff;  and  to  disprove  the  existence  of  such  last  mentioned  custom, 
the  loi-d  offered  them  as  evidence.  It  was  objected  :  1.  That  the  present  parties 
were  not  privies  to  the  record  of  the  former  suit,  and  therefore  could  not  be 
affected  by  any  matter  therein  contained  ;  it  was  res  inter  alios  acta.  2.  Or  sup- 
posing that  the  depositions  were  admissible  as  evidence  of  reputation,  still  that 
it  must  be  shown  that  the  parties  were  invested  with  the  characters  described 
in  the  depositions,  and  not  having  which,  they  were  incompetent  to  depose.  3. 
Or  even  waiving  the  two  former  objections,  that  the  depositions  were  inadmissi- 
ble in  evidence,  being  declarations  made  post  litem  motam.  The  objections 
were  overruled  :  because,  1.  The  depositions  were  not  offered  as  a  record  estop- 
ping the  plaintiff,  but  as  declarations  of  deceased  persons,  touching  a  reputation 
or  received  opinion  :  their  simple  assertion  would  have  been  evidence  ;  a  for- 
tiori those  made  under  the  sanction  of  an  oath.  2.  That  at  the  distance  of 
time,  the  fact  that  the  witnesses  were  clothed  with  the  character  in  which  they 
deposed  must  be  taken  for  granted  ;  else  it  would  be  requiring  a  proof  which, 
in  all  probability,  it  were  impossible  to  adduce.  3.  The  two  customs — the  one 
litigated  in  the  former,  the  other  in  the  present  suit — were  different ;  the  decla- 
rations, therefore,  though  made  after  the  first  custom  was  questioned,  were  made 
before  the  controversy  touching  the  present  was  raised  :  Freeman  v.  Phillips,  4 
M.  &  S.  486.  Upon  a  question  as  to  the  custom  of  tithing  in  the  parish  of  A., 
evidence  that  such  a  custom  exists  in  the  adjacent  parishes  is  not  admissible. 
Secus,  if  the  custom  be  laid  as  the  general  custom  of  the  whole  country :  Fur- 
neaux  v.  Hutchins,  Cowp.  807.  But  where  a  right  is  claimed  by  custom  in  a 
particular  manor  or  parish,  proof  of  a  similar  custom  in  an  adjoining  parish  or 
manor  is  not  admissible  evidence :  Furneaux  v.  Hutchins,  Cowp.  807  ;  Dougl. 
512  ;  Doe  d.  Foster  v.  Sisson,  12  East  62  ;  Marquis  of  Anglesea  v.  Lord  Hather- 
ton,  10  M.  &  W.  218.  ^ 

^  See  tit.  Highway  ;  lieed  v.  Jaclcson,  1  East  356  ;  R.  v.  Bliss,  7  Ad.  &  E.  (34 
E.  C.  L.  11.)  550.  Such  evidence  is  admissible  upon  an  indictment  for  not  re- 
pairing a  public  bridge,  to  show  that  it  is  a  public  bridge :  R.  v.  Sutton,  8  Ad. 
&  E.  (35  E.  C.  L.  R.)  516;  although,  in  one  case,  this  seems  to  have  been 
doubted  :  R.  v.  Antrobus,  2  Ad.  &  E.  (29  E.  C.  L.  11.)  794.  So,  to  prove  a  public 
right  of  landing  on  a  particular  spot:  Driakwater  v.  Porter,  7  C.  &  P.  (32  E.  C. 
L.  K.)  181. 

y  See  Pkiji(;ree. 

*  A  d<!(Ml  under  the  seal  of  the  University  of  Cambridge,  between  them  and 
the  town  of  (Jambridge,  relating  to  the  toll  in  question,  was  held  admissible  as 
evidence  of  reputation  respecting  them  :  Brett  v.  Beales,  M.  &  M.  (22  E.  C.  L. 
li.)  417  ;  see  Vol.  II.,  tit.  Prescriptiov. 

"  Such  evidence  has  been  received  concerning  the  jurisdiction  of  a  court  upon 

a  question  whcsther  it  was  or  was  not  a  court  of  record  :  Roi/ers  v.  Wood,  2  B.  & 
' c ! . 

'  Evidence  of  hearsay  is  admissible  in  order  to  prove  pedigree :  Strickland  v. 


REPUTATION.  189 


[*189] 

[*iyo] 


*It  is  not  essential  to  the  reception  of  sucli  evidence, 
where  it  is  adduced  in  proof  of  a  right,  that  a  foundation 
*should  previously  have  been  laid  by  evidence  of  enjoyment, 
but  without  such  proof,  evidence  of  this  kind  is  of  little 
weight.''      It   is   usually   essential   to    the  reception   of   evidence    of 

Ad.  (22  E.  C.  L.  R.)  245 ;  Bmine  v.  Dew,  2  Peake's  C.  204.  To  prove  a  custom 
of  a  corporation  to  exclude  foreigners  from  trading  in  a  particular  place  :  Davis 
V.  Morgan,  1  C.  &  J.  r)<S7  ;  or  a  right  in  a  recognized  body  of  persons  to  unload 
or  deliver  certain  goods  brought  to  a  port:  Laybourn  v.  Crisp,  4  M.  &  W.  320; 
or  a  right  in  the  lord  to  all  the  coals  under  a  certain  district  of  a  manor  :  Barnes 
V.  Mau-son,  1  M.  &  S.  77  ;  or  a  right  of  free  warren  over  all  the  copyhold  lands 
in  a  manor  :  Lord  Carnaervon  v.  ViUehois,  13  M.  &  W.  313  ;  or  a  right  to  a  public 
ferry  :  Pirn  v.  Curell,  C  M.  &  W.  234  ;  or  a  parochial  or  district  modus :  Moseley 
V.  Davies,  11  Price  162;  Eudd  v.  Wright,  1  Phill.  on  Ev.,  9th  edit.  240;  but 
not  a  farm  modus:  Wells  v.  Jesus  College,  Oxford,  7  C.  &  P.  (32  E.  C.  L.  R.)  284. 
So,  to  prove  a  liability  to  repair  a  sea-wall :  B.  v.  Leigh,  10  Ad.  &  E.  (37  E.  C, 
L.  R.)  398  ;  or  to  disprove  a  liability  to  repair  a  public  bridge  ratione  tenurcB : 
R.  V.  Sutton,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  516 ;  or  to  prove  a  mining  custom  in  a 
particular  district:  Crease  v.  Barrett,  1  C,  M.  &  R.  919;  and  upon  an  issue 
whether  A.  was  a  parochial  chapelry,  evidence  by  a  witness  of  what  he  had 
heard  a  former  incumbent  say  respecting  the  chapelry  was  held  admissible,  the 
right  involved  being  of  a  public  nature  :  Carr  v.  Mostyn,  5  Ex.  69.  But,  in  R. 
V.  Antrobus,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  788,  on  the  trial  of  an  information 
against  the  sheriff  of  a  county  for  not  executing  a  convict  under  sentence  of  death, 
it  was  held  that  a  witness  could  not  be  examined  as  to  his  having  heard  that 
it  was  the  custom  for  the  sheriff  to  be  exempted  from  performing,  and  for  another 
to  perform  the  duty  in  that  county  ;  although  proof  had  been  given  that  another 
had  always  performed  it  within  the  time  of  living  memory,  because,  as  was  said, 
the  public  were  not  interested  in  the  question  which  officer  was  to  perform  the 
duty.  Lord  Holt,  in  Hai-court's  case,  Comb.  902,  admitted  evidence  of  reputa- 
tion to  prove,  in  an  action  of  ejectione  firmce  for  a  rectory,  that  the  plaintiff  was 
in  holy  orders,  proof  having  been  previously  given  of  presentation,  admission, 
and  institution,  and  of  the  reading  of  the  articles.  Such  a  fact  seems,  however, 
to  be  more  properly  the  subject  of  presumption  than  of  proof  by  reputation  :  see 
the  Bishop  of  Meath  v.  Lord  Belfield,  B.  N.  P.  295.  Evidence  of  reputation  that 
the  land  in  question  had  belonged  to  a  particular  individual,  and  been  pur- 
chased of  him  by  an  alleged  testator,  has  been  held  to  be  clearly  inadmissible : 
Doe  V.  Thomas,  14  East  323. 

"  Crease  v.  Barrett.  1  C,  M.  &  R.  919 ;  per  cur.  Lord  Dunraven  v.  Llewellyn, 
19  L.  J.,  Q.  B.  388. 

Poole,  1  Dall.  14.  So  also  in  favor  of  freedom  :  Jenkins  v.  Tom,  1  Wash.  123  ; 
Gregory  v.  Baugh,  4  Rand.  611.  But  evidence  of  hearsay  fi-om  the  father  or 
mother  is  not  admissible  in  a  question  of  age:  Albertson  v.  Robeston,  1  Dall.  9. 
Nor  for  the  purpose  of  proving  a  person's  birth-place :  Wilmington  v.  Burling- 
ton, 4  Pick.  174.  Common  reputation  is  the  best  evidence  of  the  state  of  a  man's 
property  when  collaterally  questioned  :  State  v.  Cochryn,  2  Dev.  63.  G. 

See  ante,  p.  46,  note  1. 
12 


190  EXAMINATION     OF     WITNESSES    IN     CHIEF. 

any  declaration  or  entry  falling  within  this  description,  that  it 
should  have  been  made  ante  litem  ir.otam  ;'^  but  the  circumstance 
that  it  was  made  with  the  express  intention  of  preventing  dispute/ 
or  that  it  was  made  by  a  person  whose  title  it  supports,*  or  that  it 
was  made  by  one  who  was,  or  believed  himself  to  be  in  pari  jure 
with  the  party  relying  on  the  declaration,^  will  not  exclude  the  evi- 
dence. 

*In  other  cases  a  witness  may  be  examined  as  to  matter 

r*1911  •  • 

L          -J    of  hearsay,   where  the   evidence  is  admissible  as  secondary 

evidence.^  Such  evidence  is  in  some  instances  admissible  to  prove 
the  testimony  given  by  a  witness  in  a  former  suit  between  the  same 
parties,  who  is  since  deceased  ;^  but  in  this,  as  well  as  in  all  other 
cases  where  such  secondary  testimony  is  admitted,  it  is  necessary  to 
lay  the  foundation,  by  previous  proof,  that  the  superior  evidence,  in 
place  of  which  the  secondary  evidence  is  offered,  is  no  longer  attain- 
able. In  order  to  warrant  the  reception  of  evidence  of  what  a  de- 
ceased witness  swore  on  a  former  trial  between  the  same  parties,  it 
is  necessary  to  prove,  not  only  the  death  of  that  Avitness,  but  also 
that  the  testimony  was  given  in  a  cause  legally  depending  between 
the  same  parties.'  After  such  evidence  has  been  given,  parol  evi- 
dence of  what  the  deceased  witness  swore  upon  the  former  trial  is 
admissible.'' 

"  Berkeley  Peerage  case,  4  Camp.  401  ;  Slaney  v.  Wade,  1  Myl.  &  Cr.  338  ; 
Freeman  v.  Phillips,  4  M.  &.  S.  486 ;  Richards  v.  Bassett,  10  B.  &  C.  (21  E.  C. 
L.  11.)  657.  But  although  this  be  generally  true  as  to  mere  traditionary  decla- 
rations, the  rule  is  not,  and  indeed  cannot  be  applicable  to  verdicts  and  judg- 
ments which  fall  within  the  general  description  of  evidence  by  reputation:  see 
Reed  v.  Jackson,  1  East  356.  Cases  of  this  description  stand,  in  fact,  upon  a 
foundation  somewhat  different  from  ordinary  declarations  or  entries  by  private 
persons.     On  this  subject  some  observations  will  afterwai-ds  be  made. 

^  Berkeley  Peerage  case,  4  Camp.  418;  Monkton  v.  Attorney- General,  2  Russ. 
&  M.  147,  i64  ;  Slaney  v.  Wade,  1  M.  &  C.  338. 

•»  Doe  d.  Jenkins  v.  Davies,  10  Q.  B.  (59  E.  C.  L.  R.)  314. 

^  Monkton  v.  Attorney- General,  2  Russ.  &  M.  159. 

*  Supra,  part  i.  cap.  3.  But  evidence  cannot  be  given  of  declarations  by  a 
deceased  person,  that  a  document  purporting  to  be  attested  by  him  was  actually 
forged  by  him  :   Stobart  v.  Dryden,  1  "SI.  &  W.  615. 

''  Lord  Palmerston's  case,  cited  4  T.  R.  2U() ;  Mayor  of  Doncaster  v.  Day,  3 
Taunt.  262. 

'  See  Ijclow,  tit.  Judicial  Proceedings — Deposition. 

''  WliiTo  a  witness  on  a  former  trial  of  an  issue  out  of  Chancery  died,  and  a 
new  trial  was  granted,  parol  evidence  of  what  such  witness  had  sworn  was  held 
to  be  admissible,  notwithstanding  an  order  for  reading  the  depositions  of  such 
witnesses  had  died  since  the  first  trial :  Tod  v.  Winchelsca,  Earl  of,  3  C.  &  P. 
(14  E.  (.'.  I..  1{.)  387. 


MATTERS     OF    CONFIDENCE.  191 

Previous  also  to  the  admission  of  evidence  of  traditionary  declara- 
tions, which  tlie  witness  has  heard  made  by  others,  it  is  necessary 
to  prove  the  death  of  the  parties  who  made  them.  And  where  the 
declarations  of  deceased  persons  are  admissible  on  special  grounds, 
the  circumstances  which  warrant  the  reception  of  the  evidence  require 
collateral  proof.^ 

It  has  already  been  seen  that  the  law,  upon  grounds  of 
*policy,'"  in  some  instances,  precludes  a  witness  from  reveal-  \-n:-ino-} 
ing  matters  of  political  or  professional  confidence.  And, 
therefore,  upon  a  trial  for  high  treason,  it  was  held  that  although  a 
witness  who  had  made  communications  in  order  to  their  transmission 
to  the  Government,  might  be  properly  asked  whether  he  had  made 
such  communication  to  any  magistrate,  and  that  he  could  be  further 
asked  to  whom  he  made  such  communication  ;"  yet  a  majority  of  the 
judges"  were  of  opinion  that  on  the  witness  having  admitted  that  he 
had  communicated  what  he  knew  to  a  friend,  which  friend  had  ad- 
vised him  to  make  the  same  communication  to  another  ;  and  having 
stated  that  such  friend  was  not  a  magistrate,  he  could  not  be  asked 
who  that  friend  was,  on  the  ground  that  the  person  by  whose  advice 
the  information  was  given  to  a  person  standing  in  the  situation  of  a 
magistrate,  was  in  effect  the  informer.  So  a  witness  who  has  been 
employed  by  an  officer  to  collect  evidence  as  to  the  proceedings  of 
suspected  persons,   is  not  allowed   to  disclose  the  name  of  his  em- 

^  For  instances  where  such  evidence  is  admissible,  and  the  nature  of  the  proof 
previously  requisite  to  warrant  its  admission,  see  below,  tit.  Entries  by  Third 
Persons. 

"  Where  a  commander  in-chief  directed  the  defendant  (a  major-general)  with 
six  other  officers,  to  inquire  into  the  conduct  of  the  plaintiff,  and  to  report  the 
opinion  of  those  officers,  which  was  done  accordingly,  and  the  plaintiff  brought 
an  action  for  an  alleged  libel  contained  in  that  report,  and  the  secretary  of  the 
commander-in-chief  attended  with  the  minutes  of  the  report,  the  Court  refused 
to  allow  it  to  be  read :  Home  v.  Beiitiack,  2  B.  &  B.  (6  E.  C.  L.  R.)  130.  So 
official  communications  between  the  governor  and  law  officer  of  a  colony  as  to 
the  state  of  the  colony:  Wyatt\.  Gore,  Holt's  C.  (3  E.G.  L.  R.)  299;  or  between 
a  governor  and  a  military  officer  under  him  :  Cooke  v.  Maxwell,  2  Stark.  C.  (3 
E.  C.  L.  R.)  183  ;  or  between  an  agent  of  government  and  a  secretary  of  state: 
Anderson  v.  8ir  W.  Hamilton,  2  B.  &  B.  (6  E.  C.  L.  R.)  156,  are  privileged;  or 
the  East  India  Company  and  the  Board  of  Control :  Smith  v.  The  East  India 
Company,  1  Phil.  50;  or  an  officer  of  customs  and  the  commissioners. 

°  Hardy's  case,  24  IIow.  St.  Tr.  808  ;  R.  v.  Watson,  32  How.  St.  Tr.  100. 

°  The  Lord  Chief  Baron  Macdonald  and  Buller.  J.,  were  of  opinion  that  the 
question  was  proper  ;  Lord  C.  J.  Eyre,  Mr.  Baron  Hotham,  and  Mr.  J.  Grose, 
were  of  a  different  opinion. 


193  EXAMINATION     OF     WITNESSES     IN    CHIEF. 

^  -,    plover,  or  the  nature  of  the  connection  that  subsisted  *be- 
r*1931    '^    -^     ' 
•-         -■    tween    them.^     The  rule  of  public  policy  which   protects  a 

witness  from  being  asked  such  questions  as  would  disclose  the  in- 
former, if  he  were  a  third  person,  equally  applies  to  questions  which 
would  disclose  whether  the  witness  himself  gave  the  information ; 
therefore,  on  an  information  by  the  Attorney-General  for  a  breach  of 
the  revenue  laws,  a  witness  for  the  Crown  cannot  be  asked,  in  cross- 
examination,  "Did  you  give  the  information  T'"!  But  there  is  no 
such  privilege  in  cases  where  the  communication  was  not  made  in  the 
discharge  of  official  duty,  or  where  its  disclosure  does  not  violate 
oflScial  confidence/  ^ 

In  some  other  instances  also,  witnesses  on  grounds  of  general 
policy  are  not  allowed  to  be  examined.  Thus  a  member  of  Parlia- 
ment cannot  be  cross-examined  as  to  what  has  passed  in  Parlia- 
ment.^ And  upon  the  same  principle  it  would,  no  doubt,  be  held 
that  a  privy  councillor  could  not  be  examined  as  to  disclosures  made 
before  the  queen  in  council.*  Lord  Kenyon  is  in  one  instance  re- 
ported to  have  held  that  it  was  competent  to  the  plaintiff's  counsel, 
in  an  action  for  a  malicious  prosecution,  to  inquire  of  a  grand  juror 
whether  the  defendant  was  prosecutor  of  an  indictment."  being  of 
r*iQd.l  op'^ion  that  an  answer  to  such  *an  inquiry  would  not  in- 
fringe upon  the  witness's  official  oath.^  But  Lord  Ellen- 
borough,  C.  J.,  has  since  said  that  he  had  doubts  upon  the  point, 
and  many  eminent  men  had  entertained  doubts  upon  it.^  And  grand 
jurors  have  not  been  allowed  to  disclose  Avho,  or  how  many  were  pre- 

P  R.  V.  Hardy,  24  How.  St.  Tr.  753. 

1  Att.-General  v.  Briant,  15  M.  &  W.  1G9. 

■•  Blake  v.  Pilford,  1  M.  &  Rob:  198. 

»  PlutikeU  V.  Cobbett,  29  How.  St.  Tr.  71.  The  action  was  for  a  libel;  and 
on  the  defendant's  inquiring  on  ci'oss-examination  as  to  expressions  used  by 
the  plaintiff  in  parliament,  Lord  Ellenborough  observed  that  it  would  be  a 
breach  of  duty  in  the  witness,  as  a  member  of  the  (Irish)  parliament,  and  a 
breach  of  his  oath,  to  reveal  the  councils  of  the  nation. 

'  Evidence  was  permitted  to  be  given  by  a  privy  councillor  against  Lord 
Strafford,  of  confidential  advice  given  by  the  latter  to  the  King  at  the  council- 
table  :  4  Inst.  54  ;  a  proceeding  justly  reprobated  by  Lord  Clarendon. 

"  Syhe.s  v.  Dunbar,  2  Sel.  N.  P.  1075,  II th  ed. ;  Freeman  v.  Arkell,  1  C.  &  P. 
(12  E.  C.  L.  R.)  137.  See  Lee  v.  Birrell,  3  Camp.  337,  where  it  was  held  that  a 
(rlork  to  Commissioners  of  Taxes  was  bound  to  produce  his  books  and  answer 
all  questions  relevant  to  the  matter,  notwithstanding  his  oath  of  office. 

*  '"The  King's  counsel,  your  own,  and  your  fellows'  you  shall  keep  secret." 

y  Watson's  case,  32  How.  St.  Tr.  107. 


Ah  to  jirivileges  of  officers  of  justice  :    U.  S.  v.  Muses,  4  Wash.  C.  C.  726. 


CROSS-EXAMINATION    OF    WITNESSES.  194 

sent  when  a  case  was  brought  before  them,  or  who  agreed,  or  refused 
to  find  the  bill  of  indictment  :'■  neither  can  they  be  called  to  detail 
the  evidence  on  which  the  bill  was  found,*  or  to  show  that  a  witness 
gave  before  them  evidence  different  from  that  he  has  given  on  the 
trial,''  or  to  explain  their  finding."  And  tlie  clerk  attending  the 
grand  jury  is  included  in  the  same  rule.*^ 

So  it  has  been  seen  that  the  law,  on  grounds  of  extrinsic  policy, 
prohibits  the  disclosure  of  confidential  communications  between  a 
counsel,  or  an  attorney  and  his  client;"  and  also  usually  prohibits  a 
husband  or  wife  from  giving  testimony  against  the  other. ^ 

When  the  witness  has  been  examined  in  chief,  the  adverse  party  is 
at  liberty  to  cross-examine  him.^  The  *power  and  opportu-  r^-inr-t 
nity  to  cross-examine,  it  will  be  recollected,  is  one  of  the 
principal  tests  which  the  law  has  devised  for  the  ascertainment  of 
truth,  and  this  is  certainly  a  most  efficacious  test.  By  this  means 
the  situation  of  the  witness  with  respect  to  the   parties  and  the  sub- 

^  R.  V.  3farsh,  6  Ad.  &  E.  (33  E.  C.  L.  R.)  236. 

^  R.  V.  Watson,  32  How.  St.  Tr.  107. 

^  12  Vin.  Abr.  Evid.  H. 

«  R.  V.  Cooke,  8  C.  &  P.  (34  E.  C.  L.  R.)  584. 

'^  12  Vin.  Abr.  Evid.  B.  a.  o. 

*  Supra,  and  see  Vol.  II.,  tit.  Confidential  Communications.  In  the  case  of 
Curry  v.  Walter,  1  Esp.  C.  456  ;  Eyre,  C.  J.,  held  that  it  is  at  the  option  of  a  bar- 
rister, whether  he  will  give  evidence  of  what  he  stated  to  the  Court  upon  mak- 
ing a  motion.      Qu. 

'  Supra,  and  see  Vol.  II.,  tit.  Husband  and  Wife. 

^  In  criminal  cases  the  right  to  cross-examine  is  not  strictly  confined  to  wit 
nesses  who  have  been  examined  in  chief.  For,  although  the  prosecutor  is  not 
bound  to  call  all  the  witnesses  whose  names  are  on  the  back  of  the  bill  of  in" 
dictment,  the  judge  may  do  so,  and  in  that  case  the  prisoner's  counsel  may  cross- 
examine  them:  R.  v.  Simmonds,  1  C.  &  P.  (12  E.  C.  L.  R.)  84;  R.  v.  Beezley,  4 
C.  &  P.  (19  E.  C.  L.  R.)  220 ;  R.  v.  Bull,  9  C.  &  P.  (38  E.  C.  L.  R.)  22 ;  R.  v. 
Vincent,  9  C.  &  P.  (38  E.  C.  L.  R.)  9.  The  judge  may  call  such  a  witness  for  the 
purpose  of  suffering  him  to  be  cross-examined,  although  he  has  not  been  ex" 
amined  before  the  grand  jury  :  R.  v.  Bolle,  6  C.  &  P.  (25  E.  C.  L.  R.)  18  ) ;  and 
even  although  the  witness's  name  be  not  on  the  back  of  the  indictment:  R.  v. 
Holdeii,  8  C.  &  P.  (34  E.  C.  L.  R.)  609  ;  R.  v.  Chapman,  ib.  558  ;  R.  v.  Orchard, 
ib.,  559;  R.  V.  Stroner,  1  C.  &  K.  (47  E.  C.  L.  R.)  650.  But  the  prisoner's 
counsel  having  cross-examined  him,  cannot  call  witnesses  simply  to  contradict 
him :  R.  v.  Bodle,  6  C.  &  P.  (25  E.  C.  L.  R.)  186. 

^  As  to  cross-examination  generally,  see  People  v.  Miller,  33  Cal.  99  ;  Hamper 
V.  Lamping,  Ibid.  641  ;  Thornton  v.  Hook,  36  Ibid.  223  ;  Detroit  R.  R.  Co.  v- 
Van  Steinbury,  17  Mich.  99 ;  Toole  v.  Nichol,  43  Ala.  406  ;  Hay  v.  Douglas,  8 
Abb.  Pr.  N.  S.  217  ;  Kelsey  v.  Universal  Ins.  Co.,  35  Conn.  225  ;  Watts  v.  Water- 
bury,  42  Vt.  201. 


195  CROSS-EXAMINATION    OF     WITNESSES. 

ject  of  litigation,  his  interest,  his  motives,  his  inclination  and  preju- 
dices, his  means  of  obtaining  a  correct  and  certain  knowledge  of  the 
facts  to  which  he  bears  testimony,  the  manner  in  which  he  has  used 
those  means,  his  powers  of  discerning  facts  in  the  first  instance,  and 
his  capacity  for  retaining  and  describing  them,  are  fully  investi- 
gated, and  ascertained,  and  submitted  to  the  consideration  of  the  jury, 
who  have  an  opportunity  of  observing  the  manner  and  demeanor  of 
the  witness;  circumstances  which  are  often  of  as  high  importance  as 
the  answers  themselves.''  It  is  not  easy  for  a  witness  who  is  subjected 
to  this  test,  to  impose  upon  the  court ;  for  however  artful  the  fabri- 
cation of  the  falsehood  may  be,  it  cannot  embrace  all  the  circum- 
stances to  which  the  cross-examination  may  be  extended  ;  the  fraud 
is  therefore  open  to  detection  for  want  of  consistency  between  that 
which  has  been  invented,  and  that  which  the  witness  must  either 
represent  according  to  the  truth,  for  want  of  previous  preparation, 
or  misrepresent  according  to  his  own  immediate  invention.  In  the 
latter  case,  the  imposition  must  obviously  be  very  liable  to  detection  ; 
so  difficult  is  it  to  invent  extemporaneously,  and  with  a  rapidity  equal 
to  that  with  which  a  series  of  questions  is  proposed,  in  the  face  of  a 
court  of  justice,  and  in  the  hearing  of  a  listening  and  attentive  mul- 
titude, a  fiction  consistent  with  itself  and  the  other  evidence  in  the 
cause.' 

r*1Qn  *^  witness  when  once  called,  sworn  and  examined,  al- 
though merely  as  to  the  formal  proof  of  a  document,  may  be 
cross-examined,  although  he  be  the  substantial  party  in  the  cause.*  ^ 
And  it  has  been  held,  that  if  a  witness  has  been  once  called  into  the 
box  and  sworn,  he  may  be  cross-examined  by  the  opposite  side,  al- 
though he  has  not  been  examined  in  chief.''     But  it  has  since  been 

"  Bac.  Abr.  Ev.  E.  ;  Hob.  325  ;  Vaugh.  Rep.  143. 

*  Morfjan  v.  Brydges,  2  Stark.  C.  (3  E.  C.  L.  R.)  314.  So  in  a  criminal  case  i 
R.  V.  Brooke,  2  Stark.  C.  (3  E.  C.  L.  R.)  472. 

"  Phillips  V.  Earner,  1  Esp.  C.  357  ;  B.  v.  Bronl-e,  2  Stark.  C.  (3  E.  C.  L.  R.) 
472. 

'  Evidence  obtained  in  a  direct  examination  is  not  admissible  when  the  witness 
dies  before  there  is  an  opportunity  for  a  cross-examination  :  Kissam  v.  Forrest, 
25  Wend.  051. 

^  Where  a  witness  has  been  sworn  in  chief,  the  opposite  party  may  not  only 
cross-examine  him  in  relation  to  the  point  which  lie  was  called  to  prove,  but  he 
may  examine  him  as  to  any  matter  embraced  in  the  issue  ;  and  the  party  who 
ori;!;inally  called  such  witness  and  availed  himself  of  his  testimony,  cannot  subse- 
quently object  to  him  on  the  firoiind  of  interest  any  more  than  he  can  impeach 
]\'\H  ^'■eiKTai  character:  Fullon  liimk  v.  SluJJ'ord,  2  Wend.  483  ;  Varrick  v.  Jack- 
son, 2  Wend.  ItW,,  and  7  Cow.  23S. 


PRACTICE     OF.  196 

ruled,  that  where  a  witness  is  merely  called  to  produce  a  writing  in 
his  possession,  and  no  question  is  asked,  he  need  not  be  sworn,  and 
the  adverse  party  is  not  entitled  to  cross-examine.'  And  even  when 
a  Avitness  is  sworn  by  mistake  :  and  tlie  mistake  is  discovered  before 
any  question  is  put,  the  same  rule  applies ;""  also  where  a  witness  was 
sworn,  and  having  answered  an  immaterial  question  was  stopped  by 
the  judge,  this  was  held  to  give  no  right  to  cross-examine  him." 
And  where,  before  the  passing  of  Lord  Denman's  Act,  in  an  action 
by  the  assignees  of  a  bankrupt,  the  petitioning  creditor  was  called 
for  the  purpose  of  producing  the  bill  of  exchange  on  which  the  debt 
was  founded,  the  court  would  not  permit  him  to  be  cross-examined 
by  the  defendant,  since  he  could  not  have  been  examined  by  the 
plaintiffs."  But,  in  general,  if  the  witness  be  sworn,  and  would  be  a 
competent  witness  for  *the  party  calling  him,  the  adversary  r^iny-i 
will  be  entitled  to  cross-examine  him,  although  he  has  not 
been  examined  in  chief,''  unless  he  was  sworn  by  mistake. "^ 

The  courts  do  not  usually  exclude  a  party  on  the  cross-examina- 
tion of  a  witness  from  putting  leading  questions,  although  the  witness 
betrayed  an  anxiety  to  serve  that  party  ;  it  is  however  obvious  that 
evidence  so  obtained  is  very  unsatisfactory,  and  is  open  to  much 
observation. ■■     Although  upon   cross-examination   a  counsel  may  put 

•  Simpson  v.  Smith,  cor.  Holroyd,  J.,  Nottingham  Summer  Ass.  1822,  2  Phil, 
on  Ev.  397,  9th  ed. ;  and  per  Bayley  J.,  Lancaster  Spring  Assizes,  1824.  In  an 
action  for  a  malicious  prosecution,  the  magistrate  who  committed  the  plaintiff 
was  called  to  produce  the  information,  but  was  asked  no  question,  and  the 
learned  judge  held  that  the  defendant's  counsel  were  not  entitled  to  cross- 
examine  him :  Davis  v.  Dale,  Mood.  &  M.  (22  E.  C.  L.  R.)  514  ;  4  C.  &  P.  (19 
E.  C.  L.  R.)  335 ;  see  also  Summers  v.  Moseley,  2  Cr.  &  M.  477  ;  Rush  v.  Smith, 
1  Cr.,  M.  &  R.  94;  Pernj  v.  Gibson,  1  Ad.  &  E.  (28  E.  C.  L.  R.)  48.  So  in 
criminal  cases:  R.  v.  Murlis,  Moo.  &  M.  (22  E.  C.  L.  R.)  515. 

"^  Wood  V.  Mackinson,  2  M.  &  Rob.  273  ;  Clifford  v.  Hunter,  3  C.  &  P.  (14  E. 
C.  L.  R.)  16. 

°  Creevtj  v.  Carr,  7  C.  &  P.  (32  E.  C.  L.  R.)  65. 

0  Reed  v.  James,  1  Starkie's  C.  (2  E.  C.  L.  R.)  132. 

P  Phillips  V.  Earner,  1  Esp.  C.  357  ;  R.  v.  Brooke,  2  Stark.  C.  (3  E.  C.  L.  R.) 
473. 

1  Clifford  V.  Hunter,  3  C.  &  P.  (14  E.  C.  L.  R.)  60 ;  Rush  v.  Smith,  1  Cr.,  M. 
&  R.  94. 

''  I  have  heard  Lord  Tenterden,  C.  J.,  express  himself  to  that  effect  more  than 
once.  In  Hardy^s  case,  24  How.  St.  Tr.  755,  upon  a  trial  for  high  treason,  a 
witness  having  been  called  for  the  prosecution  who  was  favorable  to  the 
prisoner,  and  who  had  been  a  member  of  the  corresponding  Society,  was  asked 
whether  particular  expressions,  which  were  suggested  to  him,  had   not  been 


197  CROSS-EXAMINATION    OF    WITNESSES. 

leading  questions,  those  questions  must  not  assume  facts  to  have 
been  proved  which  have  not  been  proved,  or  that  particular  answers 
have  been  given  contrary  to  the  facts. ^  The  witness  cannot  be  cross- 
examined  as  to  the  contents  of  a  written  document  which  is  not  pro- 
r*iqftl  duced  ;'  nor  as  to  *the  contents  of  a  written  document  which 
is  in  the  hands  of  the  adversary,  and  which  he  has  had  notice 
to  produce  ;  for  this  is  part  of  the  case  of  the  party  who  cross- 
examines,  which  cannot  be  gone  into  until  that  of  his  adversary  has 
been  concluded. 

It  has  been  said  that  Avhere  a  witness  has  been  examined  by  one 
party,  he  may  afterwards  be  cross-examined  by  the  same  party  as 
an  adverse  witness,  wdien  he  is  called  by  the  adversary  as  one  of  his 
own  Avitnesses.  If  a  party  omit,  from  prudential  motives,  to  examine 
his  adversary's  witness  as  to  any  branch  of  his  own  case,  there  seems 
to  be  no  reason  wdiy,  when  he  afterwards  adopts  him  as  his  own  wit- 
ness, he  should  not  be  so  considered  to  all  purposes,  and  why  the 
adversary  should  not  then  be  entitled  to  cross-examine  him.  The 
same  witness  may  know  distinct  parts  of  the  transaction,  one  branch 
of  which  makes  for  the  plaintiff,  and  the  other  for  the  defendant  ; 
and  if  each  party  call  him  as  his  own  witness,  there  seems  to  be  no 
reason  why  each  should  not  be  in  turn  bound  by  the  same  principle ; 
why  each,  in  examining  into  his  own  case,  should  not  be  precluded 
from  putting  leading  questions,  and  be  entitled  to  cross-examine  as 
to  his  adver8ar}''s  case.^  And  when  a  witness  on  the  bill  was  ten- 
used  by  the  members  of  that  society,  and  Lord  Chief  Justice  Eyre  informed 
the  counsel  that  he  could  not  put  words  into  the  mouth  of  the  witness,  and 
that  this  was  contrary  to  the  practice  of  the  court,  and  to  his  opinion.  And 
Buller,  J.,  upon  the  same  trial,  said,  "You  may  lead  a  witness,  upon  cross- 
examination,  to  bring  him  directly  to  the  point  as  to  the  answer  ;  but  not  go 
the  length,  as  was  attempted  yesterday,  of  putting  into  the  witness's  mouth 
the  very  words  which  he  is  to  echo  back  again."  In  the  late  case  of  Parlcin  v. 
Moon,  7  C.  &  P.  (32  E.  C.  L.  R.)  408,  Alderson,  B.,  said:  "I  apprehend  you 
may  put  a  leading  question  to  an  unwilling  witness  on  the  examination  in  chief, 
but  you  may  always  put  a  leading  question  in  cross-examination,  whether  a 
witness  be  willing  or  not." 

*  Uill  V.  Cnoinhe,  cor.  Abbott,  J.,  Exeter  Spring  Assizes,  1818;  Handleij  \. 
Ward,  cor.  Abbott,  L.  C.  J.,  Lancaster  Spring  Assizes,  1818. 

'  Sainlhill  v.  Bound,  4  Esp.  C.  74.  But  the  right  of  cross-examination  is  not 
limited  to  the  matter  as  to  which  the  witness  has  been  examined  in  chief,  even 
in  equity:  The  Mayor,  &c.,  of  Berwick-vpoii-Tweed  v.  Murray,  19  L.  J.,  Chan. 
281. 

'  A  party  cannot  introduce  his  case  to  the  jury  by  cross-examining  the  wit- 


PRACTICE     OF.  198 

dered,  but  not  examined  by  the  prosecutor,  and  was  examined  for  the 
prisoner,  it  was  beld  he  might  be  cross-examined  by  the  prosecutor.^ 

The  mode  of  examination  is,  in  truth,  reguhited  by  the  discretion 
of  the  court,  according  to  the  disposition  and  temper  of  the  witnesses  ; 
the  court  frequently  permitting,  as  before  stated,  an  adverse  witness 
to  be  cross-examined  by  the  party  who  calls  him. 

For  the  purpose  of  furthering  the  object  of  cross-examination,  the 
court,  will,  in  general,  at  the  instance  of  either  party,''  direct  that 
the  witnesses  shall  be  examined  each  *separately  apart  from 
the  hearing  of  the  rest ;''  a  strong  test  to  try  the  consistency    '-         -^ 
of  their  account ;''    and  the  same  indulgence  may  be  granted  to  a 

y  R.  V.  Harris,  7  C.  &  P.  (32  E.  C.  L.  R.)  581. 

^  The  court  will  order  the  witness  on  the  part  of  the  defendant  out  of  court 
even  after  the  plaintiff's  case  is  closed :  Taylor  v.  Lawson,  3  C.  &  P.  (14  E.  C.  L. 
II.)  543;  Williams  v.  Hulie,  1  Sid.  131.  So  either  party  at  any  period  of  the 
trial  may  require  witnesses  to  be  ordered  out  of  court :  Soutliey  v.  Nash,  7  C.  & 
P.  (32  E.  C.  L.  R.)  632. 

*  Attorney- General  v.  Bulpit,  9  Price  4 ;  Taylor  v.  Lawson,  3  C.  &  P.  (14  E.  C. 
L.  R.)  543.  In  the  House  of  Lords,  no  witness  but  the  person  under  examina- 
tion is  allowed  to  be  present:  Ibid.  It  is  almost  a  matter  of  right  to  have  the 
witness  ordered  out  of  court  when  an  argument  is  going  on  respecting  his  evi- 
dence: R,  v.  Murphy,  8  C.  &  P.  (34  E.  C.  L.  R.)  307. 

^  No  falsehoods  are  so  difficult  to  be  detected  as  those  which  are  mixed  up 
with  a  great  portion  of  truth ;  the  greater  the  proportion  which  the  true  facts 
bear  to  the  false  ones,  the  less  opportunity  will  there  be  to  detect  the  false  by 
comparison  with  facts  ascertained  to  be  true.  An  ingenious  mode  of  proving 
an  alibi  with  consistency  has  long  been  known  and  practiced  by  roguish  adepts. 
The  intended  witnesses  meet  and  pass  the  afternoon  or  evening  together  in  con- 
vivial entertainment:  when  they  are  afterwards  examined,  they  are  all  consistent 

nesses  of  the  adverse  party  :  Ellmaker  v.  Buckley,  16  S.  &  R.  72 ;  McKinley  v. 
McGregor,  3  Whart.  369 ;  Hartness  v.  Boyd,  5  Wend.  563.  G. 

If  a  party  wishes  to  examine  ?.  witness  of  the  opposite  side  with  regard  to 
new  matter  not  introduced  by  the  opposite  party,  he  must  make  the  witness  his 
own  by  introducing  him  in  a  subsequent  part  of  the  cause :  Philadelphia  and 
Trenton  Railroad  Co.  v.  Stimpson,  14  Pet.  448  ;  Hartness  v.  Boyd,  5  Wend.  563; 
Floyd  V.  Bovard,  6  W.  &  S.  75  ;  Castor  v.  Bavington,  2  Ibid.  505 ;  Rucker  v. 
Eddings,  1  Mo.  115 ;  Beat  v.  Nichols,  2  Gray  262 :  Broum  v.  State,  28  Ga.  199  ; 
Pat  ton  v.  Hamilton,  12  Ind.  256 ;  Dearmond  v.  Dearmond,  Ibid.  455.  Cross- 
examination  must  be  confined  to  matters  testified  in  chief:  Helser  v.  McGrath, 
2  P.  F.  Smith  531 ;  Bell  v.  Chambers,  38  Ala.  660  ;  Chicago  R.  R.  Co.  v.  Northern, 
Illinois  Co.,  36  111.  60.  When  a  witness  has  been  examined  in  chief  by  the 
plaintifi",  he  cannot,  after  the  defendant  has  ofi'ered  evidence  to  contradict  what 
the  witness  has  said,  recall  him  simply  to  repeat  what  he  said  in  the  first 
examination :  Hudspeth  v.  Allen,  26  111.  60.  As  to  new  matter  on  cross- 
examination,  see  Ferguson  v.  Rutherford,  7  Nev.  385 ;  Sanford  v.  Sanford,  5 
Lans.  486;  61  Barb.  293. 


199  CROSS-EXAMINATION    OF    WITNESSES. 

prisoner,  but  not  as  a  matter  of  right."  An  order  of  exclusion 
does  not  extend  to  an  attorney  in  the  cause,  if  his  presence  in  court 
be  necessary/  Where  a  witness  remains  in  court  after  an  order  for 
the  exclusion  of  witnesses,  the  rejection  or  admission  of  his  testimony 
is  a  question  for  the  discretion  of  the  judge  under   all   the  circum- 

.-.  ^^^-,  stances  of  the  case  i''  *thus,  where  the  witness  remained  from 
r  2001       .  .  . 

L  -•  mistake,  and  from  no  undue  motive,  his  testimony  was  re- 
ceived/ But  where,  after  witnesses  had  been  ordered  out  of  court, 
one  had  returned,  and  heard  another  give  his  evidence,  the  judge 
allowed  him  to  be  examined  as  to  facts  not  sworn  to  by  any  previous 
witness,  but  with  liberty  to  move  to  enter  a  nonsuit.^  In  the  Court 
of  Exchequer,  however,  the  rule  for  the  rejection  of  such  a  witness, 
whether  for  the  Crown  or  the  defendant,  in  revenue  cases,  is  known, 
and  inflexible/  ^ 

It  is  here  to  be  observed,  that  a  witness  is  not  to  be  cross- 
examined  as  to  any  distinct  collateral  fact  for  the  purpose  of 
afterwards  impeaching  his  testimony  by  contradicting  him ;  for 
this  would  render  an  inquiry,  which  ought  to  be  simple,  and  con- 
fined to  the  matter  in  issue,  intolerably  complicated  and  prolix, 
by  causing  it  to  branch  out  into  an  indefinite  number  of  collateral 
issues/     In  the  case  of  Spencely  v.  Willott,^  which  was  a  penal  action 

as  to  the  circumstances  which  attended  their  meeting,  for  so  far  they  relate 
nothing  more  than  the  truth  ;  they  misrepresent  nothing  but  the  time  when  the 
transaction  took  place,  which,  for  the  purpose  of  the  alibi,  is  of  course  repre- 
sented to  be  that  of  the  robbery. 
"  B.  V.  Cook,  U  How.  St.  Tr.  348  ;  R.  v.  Gooden,  17  How.  St.  Tr.  1015. 

*  Pomeroy  v.  Baddeley,  Ry.  &  M.  (21  E.  C.  L.  R.)  430 ;  Everett  v.  Lowdham, 
5  C.  &  P.  (24  E.  C.  L.  R.)  91  ;  R.  v.  Webb,  Sarum  Summer  Ass.  1819,  cor.  Best, 
J.,  contra. 

®  A  new  trial  in  one  case  was  granted  because  a  witness's  testimony  had  been 
rejected  on  that  ground  :^er  Alderson,  B.,  in  Cooke  v.  Nethercote,  6  C.  <fc  P.  (25 
E.  C.  L.  R.)  741 ;  and  the  case  reported  in  the  note  ;  see  also  Beamon  v.  Ellice, 
4  C.  &  P.  (19  E.  C.  L.  R.)  585;  R.  v.  Wi/lde,  6  C.  &  P.  (25  E.  C.  L.  R.)  380; 
Thomas  v.  David,  7  C.  &  P.  (32  E.  C.  L.  R.)  350 ;  R.  v.  Colley,  Mood.  &  M.  (22 
E.  C.  L.  R.)  329.  The  witness  is  liable  to  attachment  for  contempt:  Chandler 
V.  Home,  2  M.  &  Rob.  423. 

'  R.  V.  Collet/,  Moo.  &  M.  (22  E.  C.  L.  R.)  329. 

«  Beamon  v.  Ellice,  4  C.  &  P.  (19  E.  C.  L.  R.)  585. 

''  Attorney- General  v.  Bulpit,  9  Price  4;  Parker  v.  McWilliam,  6  Bing.  (19  E. 
C.  L.  R.)  GH3  ;  Thomas  v.  David,  7  C.  &  P.  (32  E.  C.  L.  R.)  351. 

'  7  East  108.     See  Mr.  J.  Ilolroyd's  observation  on  the  case,  2  Stark.  C.  (3  E, 

*  As  to  the  separate  examination  of  witnesses,  see  Anon.,  1  Hill  (S.  C.)  251 ; 
State  V.  Sellers,  2  Halst.  220 ;  State  v.  Sparrow,  3  Murph.  487  ;  State  v.  Brook- 
shire,  2  Ala.  303 ;  Keith  v.  Wilson,  fi  Mo.  435 ;  Nelson  v.  State,  2  Swan.  237. 

'  A  witness  cannot  be  asked  a  collateral  question,  irrelevant  to  the  matter  in 


AS    TO     COLLATERAL    FACTS.  201 

for  usury,  the  defendant's   *counsel  Avere   not  permitted  to    ^,^^,^ 

r*2011 
cross-examine  as  to  other  contracts  made  on  the  same  days    ^  "     -* 

with  other  persons,  in  order  to  show  that  the  contracts  in  question 
were  of  the  same  nature,  and  not  usurious,  if  the  witness  answered 
one  way,  or  to  contradict  him  if  he  answered  the  other  way.  And 
should  such  questions  he  answered,  evidence  cannot  afterwards  he 
adduced  for  the  purpose  of  contradiction.''  The  same  rule  ohtains, 
if  a  question  as  to  a  collateral  fact  he  put  to  a  witness  for  the  pur- 
pose of  discrediting  his  testimony ;  his  answer  must  be  taken  as 
conclusive,  and  no  evidence   can  be  afterwards   admitted  to  contra- 

C.  L.  R.)  156  ;  Ilarris  v.  Tij^J^eit,  2  Camp.  638.  It  is  an  acknowledged  law  of 
evidence,  said  Lord  Cottenham,  C,  in  givino;  judgment  in  the  House  of  Lords  in 
Tennant  v.  Hamilton^  7  CI.  &  Fin.  122,  that  you  cannot  go  into  an  irrelevant  in- 
quiry for  the  purpose  of  causing  a  collateral  issue  to  discredit  a  witness  produced 
on  the  other  side.  The  object  of  the  action  (a  Scotch  one)  was  to  try  a  question 
of  nuisance  to  a  garden  said  to  be  injured  by  vapor  emitted  from  a  neighboring 
manufactory.  A  witness  called  for  the  defendants  had  been  examined  as  to 
other  gardens  and  premises  in  the  neighborhood,  and  had  said  that  he  knew 
Glascow  Field,  but  never  know  of  any  damage  done  there.  The  pursuer  then 
proposed  to  ask  him  whether  he  had  ever  known  of  any  sum  having  been  paid 
by  the  defendants  to  the  proprietors  of  Glascow  Field  for  alleged  damage 
there  occasioned  by  the  works.  The  House  of  Lords,  for  the  reason  above 
assigned,  held  that  the  question  could  not  be  put.  But  although  the  question 
appear  to  be  irrelevant  to  the  issue,  it  is  to  be  allowed,  if  counsel  undertake  to 
show  by  other  evidence  that  it  is  relevant :  Haigh  v.  Belcher^  7  C.  &  P.  (32  E. 
C.  L.  li.)  389. 

"  Ilarris  v.  Tippett,  2  Camp.  638,  639 ;  R.  v.  Waisoji,  2  Stark.  C.  (3  E.  C.  L. 
R.)  149;  Hughes  v.  Eogers,  8  M.  &  W.  123  ;  Lee's  case,  2  Lew.  C.  C.  154  ;  Har- 
rison V.  Gorton,  Ibid.  156. 

issue,  merely  to  test  his  credibility :  Odiorne  v.  Winkeley,  2  Gall.  31  ;  Lawrence 
V.  Barker,  5  Wend.  301 ;  Radford  v.  Rice,  2  Dev.  &  Bat.  39 ;  Jones  v.  McNeil, 
2  Bailey  466 ;  Atwood  v.  Welton,  7  Conn.  66  ;  U.  S.  v.  Dickenson,  2  McLean 
325  ;  Dozier  v.  Joyce,  8  Port.  303  :  Ortez  v.  Jewett,  23  Ala.  662  ;  Seavy  v.  Dear- 
horn,  ION.  H.  351 ;  Cornelius  v.  Commonwealth,  15  B.  Monr.  539.  It  is  in  the 
discretion  of  the  court  trying  a  case  to  §ay  how  far  irrelevant  questions  may  be 
asked  of  a  witness  on  a  cross-examination :  Clark  v.  Trinity  Church,  5  "W.  &  S. 
266  ;  Gloucester  v.  Bridgham,  28  Me.  60 ;  Poivers  v.  Leach,  26  Vt.  270.  It  is 
competent  Avithin  the  discretion  of  the  Court  on  cross-examination  to  ask  a  wit- 
ness whether  he  has  ever  been  confined  in  the  State  prison,  and  to  sift  thoroughly 
his  character  and  antecedents:  Wilbur  v.  Flood,  16  Mich.  40.  A  witness  upon 
cross-examination  may  be  asked  whether  he  has  not  expressed  feelings  of  hos- 
tility towards  the  opposite  party :  State  v.  Dee,  14  Minn.  35.  And  see  as  to  the 
latitude  allowed  on  cross-examination  to  test  credibility :  Winston  v.  Cox,  38 
Ala.  268. 


202  CROSS-EXAMINATION    OF    WITNESSES. 

t-,^^^-,    tlict  it.' ^     Thus,  in  an  information  under  tbe  revenue  *laws, 

r  2021  .  . 

L         -"a  witness  who  had  given  material  evidence  as  to  the  fact  in 

'  H.  V.  Watson,  2  Stark.  C.  (3  E.  C.  L.  R.)  149;  R.  v.  Teale  and  others,  cor. 
Lawrence,  J.,  at  York.  It  is  said  to  have  been  held,  that  the  question,  whether 
a  witness  for  one  party  had  not  attempted  to  dissuade  a  witness  for  the  adver- 
sary from  attending  to  give  evidence  at  the  trial,  was  so  immaterial,  that  if  the 
witness  answered  in  the  negative  he  could  not  be  contradicted  :  Harris  v.  Tip- 
pett,  2  Camp.  637,  cor.  Lawrence,  J.  It  cannot,  however,  be  doubted  that  the 
fact,  if  proved,  would  show  a  very  strong  and  improper  bias  on  the  mind  of  the 
witness,  and  in  a  doubtful  case  afford  a  fair  ground  for  suspecting  his  sincerity. 
In  Lord  Stafford's  case,  7  Howell's  St.  Tr.  1400,  the  prisoner  was  allowed  to 
prove  that  Dugdale,  a  witness  for  the  prosecution,  had  endeavored  to  suborn 
witnesses  to  give  false  evidence  against  the  prisoner.  The  late  case  of  Thomas 
V.  David,  7  C.  &  P.  (32  E.  C.  L.  R.)  350,  tends  to  overrule  Harris  v.  Tippett. 
There,  in  an  action  on  a  promissory  note,  the  plaintiff's  servant  (an  attesting 
witness)  being  called  to  prove  the  signature,  was  asked  on  cross-examination, 
whether  she  did  not  sleep  in  the  same  bed  with  the  plaintiff.  On  its  being  ob- 
jected that  the  point  of  intended  contradiction  was  merely  collateral,  Coleridge, 
J.,  in  overruling  the  objection,  said:  "Is  it  not  material  to  the  issue  whether 
the  principal  witness  who  comes  to  support  the  plaintiff's  case  was  his  kept 
mistress  ?  If  the  question  had  been  whether  the  witness  had  walked  the  streets 
as  a  common  prostitute,  I  think  that  would  have  been  collateral  to  the  issue, 
and  that,  if  the  witness  had  denied  such  a  charge,  she  could  not  have  been  con- 
tradicted ;  but  here  the  question  is,  whether  the  witness  had  contracted  such  a 
relation  with  the  plaintiff  as  might  induce  her  the  more  readily  to  support  a 
forgery — just  in  the  same  way  as  if  she  had  been  asked,  if  she  was  the  sister  or 
daughter  of  the  plaintiff."  And  where  the  question  was  what  consideration 
passed  on  discounting  a  bill  of  exchange.  Lord  Tenterden  held,  that  what  a 
witness  had  said  upon  a  former  trial  between  the  parties  concerning  another 
bill  discounted  at  the  same  time  and  under  the  same  circumstances  was  not  col- 
lateral:  Meofjoe  v.  Simmons,  3  C.  &  P.  (14  E.  C.  L.  R.)  76.  But,  in  an  action 
on  a  policy  of  insurance,  a  witness  for  the  defendant  was  asked,  whether  he 
had  not  said  that  "they  had  not  a  leg  to  stand  upon."  Tindal,  C.  J.,  held,  that 
contradiction  was  inadmissible :  Elton  v.  Larldns,  5  C.  &  P.  (24  E.  C.  L.  R.) 
590.  Upon  this  principle,  on  a  question  as  to  the  genuineness  of  handwriting, 
though  the  jury  may  compare  the  document  with  the  authentic  writings  of  the 
party  to  whom  it  is  asci'ibed,  provided  such  writings  are  in  evidence  for  other 
purposes  :  Doe  dem.  Perry  v.  Newlor,  5  Ad.  &  E.  (31  E.  C.  L.  R.)  514,  witnesses 
cannot  be  asked  whether  papers,  not  in  evidence  in  the  cause,  placed  on  the 
witness-box,  were  signed  by  the  party  with  a  view  to  test  their  knowledge  of 
the  handwriting  by  their  agreement  or  disagreement:  Grijits  v.  Ivery,  11  Ad.  & 
E.  (39  E.  C.  L.  R.)  322.  So  where  a  witness,  called  to  prove  the  handwriting  of 
an  attesting  witness  to  a  bond,  swore  that  it  was  not  his  handwriting,  and 
another  paper  was  then  shown  him  which  lie  also  stated  was  not  in  that  person's 
handwriting,  which  latter  paper  was  not  in  evidence  in  the  cause,  it  was  held 

^  A  defendant  having  cross-examined  a  plaintiff's  witness  on  subjects  irrele- 
vant to  the  issue,  will  not  be  permitted  to  give  evidence  that  the  witness  testified 


CRIMINATING    EVIDENCE.  202 

issue  was  asked,  on  cross-examination,  whether  he  had  not  said 
that  the  officer  of  the  Crown  had  offered  him  a  brihe  to  give 
that  evidence.  lie  denied  having  said  so,  and  evidence  being 
then  tendered  to  prove  that  he  had  made  such  a  statement,  it  was 
rejected.'"  The  rule  does  not  of  course  exclude  the  contradiction 
of  the  witness  as  to  any  facts  immediately  connected  with  the  sub- 
ject of  inquiry,  Avhich  in  themselves  would  otherwise  be  legitimate 
evidence  in  the  cause."  A  witness  may,  however,  be  asked  whether, 
in  consequence  of  his  *haviiig  been  charged  with  robbing  r*9Ao-| 
•the  prisoner,  he  has  not  said  that  he  would  be  revenged 
upon  him  :  and,  in  case  of  denial,  he  may  be  contradicted."  In  such 
a  case  the  inquiry  is  not  collateral,  but  most  important,  in  order  to 
show  the  motives  and  temper  of  the  witness  in  the  particular  trans- 
action. But,  in  order  to  let  in  such  a  contradiction,  the  witness 
should  have  been  cross-examined  as  to  the  use  of  such  expressions  in 

that  the  phiintiif  could  not,  for  the  purpose  of  contradicting  the  witness,  prove 
that  the  latter  paper  was  written  by  the  attesting  witness  :  Hughes  v.  Rogers,  8 
M.  &  W.  123.     See  A^ol.  II.,  Handwriting. 

™  A ftornei/- General  v.  Hitchcock,  1  Exch.  91. 

"  Per  Alderson,  B.,  in  Attorney- General  v.  Hitchcock,  1  Exch.  91. 

"  Yewvi's  case,  2  Camp.  638,  n.,  cor.  Lawrence,  J. 

falsely  on  the  subjects:  Griffith  v.  Eshelman,  4  "Watts  51  ;  Smith  v.  Dreer,  3 
Whart.  154;  Stevens  v.  Beach,  12  Vt.  585;  People  v.  Rector,  19  Wend.  569; 
Mclnti/re  v.  Young,  6  Blackf.  496  ;  Wuu-hon-chaw-neck-kaw  v.  U.  S.,  1  Morris 
332 ;  Howard  v.  Ciig  Fire  Ins.  Co.,  4  Denio  502 ;  Herson  v.  Henderson,  3  Eos. 
498  ;  Morgan  v.  Frees,  15  Barb.  352;  Ortez  v.  Jeioett,  23  Ala.  662.  The  state- 
ments of  a  witness,  made  out  of  court,  contrary  to  what  he  swears  at  the  trial, 
concerning  facts  relevant  to  the  issue,  may  be  proved  to  impeach  his  credit ; 
but  not  if  they  be  of  irrelevant  facts  :  Shields  v.  Cunningham,  1  Blackford  86; 
Rosenbaum  v.  State,  33  Ala.  354;  Blakey  v.  Blakeg,  Ibid.  611  ;  ComJ)s  v.  Win- 
chester, 39  N.  II.  13  ;  Scale  v.  Chambliss,  35  Ala.  19  ;  Tibbitts  v.  Flanders,  18 
N.  H.  284;  State  v.  Thibeau,  30  Vt.  100;  State  v.  Staley,,  14  Minn.  105;  Gan- 
dolfer  V.  Appleton,  40  N.  Y.  533  ;  Frank  v.  Manny,  2  Daly  92 ;  Prescot  v.  Ward, 
10  Allen  203  ;  La  Beau  v.  People,  34  N.  Y.  223  ;  Hildeburn  v.  Curran,  15  P.  F. 
Smith  59;  Fogleman  v.  State,  32  Ind.  145  ;  Harper  v.  Indianapolis  R.  R.  Co., 
47  Mo.  567  ;  Clark  v.  Clark,  65  N.  C.  655 ;  Comstock  v.  Smith,  20  Mich.  338. 
A  witness  may  be  asked  on  cross-examination  whether  he  had  not  declared  an 
enmity  to  the  defendant,  and  on  his  denial  evidence  of  his  declaration  is  admis- 
sible :  Bullard  v.  Lambert,  40  Ala.  204.  Declarations  out  of  court  of  witness 
showing  bias  or  personal  ill-will  to  the  party  are  admissible :  Day  v.  Stickney, 
14  Allen  255.  Denial  of  interest  on  cross-examination  may  be  contradicted  : 
Geary  v.  People,  22  Mich.  220.  It  is  within  the  discretion  of  the  court  to  per- 
mit counsel  on  cross-examination  to  ask  a  witness,  whether  he  has  not  sworn 
falsely  in  a  particular  suit  or  on  some  occasion  ;  but  not  whether  third  persons 
have  accused  him  of  swearing  falsely :  Hannah  v.  McKellip,  49  Barb.  342. 


203  CROSS-EXAMINATION     OF    WITNESSES. 

order  to  enable  him  to  explain  them;  thus,  in  an  action  for. seduction 
of  the  plaintiff's  daughter,  she  was  asked  whether  she  knew  A.  B., 
and  she  thereupon  having  denied  that  she  knew  him,  evidence  that 
she  had  told  a  witness  that  A.  B.  was  the  father  of  her  child  and  had 
seduced  her,  offered  bj  way  of  contradiction,  was  rejected.  But  the 
Court  observed  that  had  she  been  cross-examined  as  to  statements 
made  by  her  relating  to  him,  such  evidence  would  have  been  admissi- 
ble.P  Of  course  witnesses  cannot  be  called  to  contradict  a  witness  as 
to  a  fact  he  says  he  does  not  recollect,  or  to  which  he  will  not 
positively  depose. '^ 

It  is  now  settled  by  the  authority  of  the  legislature,  that  a  witness 
r*9041  ^•'^'^'^0^  refuse  to  answer  questions'  because  *he  may  subject 
himself  to  a  civil  liability  or  charge ;  but  he  is  not  bound  to 
answer  any  question,  either  in  a  court  of  law  or  of  equity,  if  his 
answer  will  expose  him  to  any  criminal  punishment  or  penal  liability, 
or  even  tends  collaterally  to  convict  him,  agreeably  to  the  wise  and 
humane    principle   that    no   man    is    bound    to   criminate    himself."^ 

P  Carpenter  v.  Wall,  11  Ad.  &  E.  (39  E.  C.  L.  R.)  303. 

1  Long  V.  Hitchcock,  9  p.  &  P.  (38  E.  C.  L.  R.)  619. 

"■  Before  the  passing  of  the  46  Geo.  III.  c.  38,  it  was  vexata  quoestio,  whether  a 
witness  was  bound  to  answer  when  the  answer  might  subject  him  to  civil  liabili- 
ties. On  the  question  being  proposed  by  the  House  of  Lords  to  the  Judges, 
Mansfield,  C.  J.,  of  C.  P.,  Grose  and  Rooke,  Js.,  and  Thompson,  B.,  were  of 
opinion  that  he  was  not ;  but  the  Lord  Chancellor  and  the  other  Judges  were  of 
a  contrary  opinion.  They  were  all  of  opinion  that  a  promise  to  a  witness  that 
he  should  be  excused  from  certain  debts,  provided  he  made  a  full  and  fair  dis- 
closure, did  not  render  him  incompetent  on  the  score  of  interest:  Cobbett's  P. 
D.  vol.  6,  p.  167.  But  this  statute  declares  and  enacts,  that  a  witness  cannot  by 
law  refuse  to  answer  a  question  relevant  to  the  matter  in  issue,  the  answering  of 
which  has  no  tendency  to  expose  him  to  a  penalty  or  forfeiture  of  any  nature 
whatsoever,  by  reason  only,  or  on  the  sole  ground  that  the  answering  of  such 
question  may  establish,  or  tend  to  establish,  that  he  owes  a  debt,  or  is  otherwise 
subject  to  a  civil  suit,  either  at  the  instance  of  his  Majesty  or  of  any  other  pei'- 
son  or  persons. 

Although  this  statute  in  its  terms  applies  to  oral  evidence  only,  yet  it  has  been 
held  that  a  witness  is  not  excused  from  producing  papers  merely  because  they 
may  subject  him  to  an  action,  or  be  prejudicial  to  his  pecuniary  interest :  Doe  v. 
Date,  3  Q.  B.  (43  E.  C.  L.  R.)  609 ;  Doe  v.  Earl  of  Egremont,  2  M.  &  Rob.  386  ; 
otherwise,  of  course,  if  they  are  his  muniments  of  title  :  Ibid. 

A  rated  parishioner  in  a  settlement  case  is  a  party  to  the  appeal,  and  there- 
fore does  not  come  within  the  words  or  meaning  of  the  Act:  R.  v.  Wohurn,  10 
East  395  ;  see  54  Geo.  III.,  c.  170. 

'  //.  V.  Jiftrljer,  Stra.  444 ;  Cates  v.  Hardacre,  3  Taunt.  424 ;  Sir  J.  Freend's 
cane,  13  How.  St.  Tr.  1  ;  ]A)rd  MacclesJiehV s  case,  16  How.  St.  Tr.  707  ;   16  Ves. 

'  As  to  the  privilege  of  a  witness  to  refuse  an  answer  which  may  criminate  or 


CRIMINATING    QUESTIONS.  205 

*Accordingly,  a  witness  is  not  compellable  to  say  whether  i-^qact 
he  published  a  particular  paper,  if  the  contents  be  libellous  ;' 

jun.  242 ;  Title  v.  Grevet,  2  Ld.  Raym.  1008  ;  R.  v.  Oates,  10  IIow.  St.  Tr.  107'J:; 

2  Haw.  c.  46  ;  Mitford's  Ch.  PI.  157  ;  R.  v.  Lord  George  Gordon,  2  Doug.  593  ; 
Hard,/s  case,  24  IIow.  St.  Tr.  755  ;  R.  v.  Slaney,  5  C.  &.  P.  (24  E.  C.  L.  R.)  213  ; 
R.  V.  Pegler,  Ibid.  521  ;  Maloney  v.  Bartley,  3  Camp.  210;  Danhridge  v.  Corden 

3  C.  &  P.  (14  E.  0.  L.  R.)  11  ;  i?.  V.  De  Bereiiger  and  others,  reported  by  Gurney, 
105;  Cutes  V.  Hardacre,  3  Taunt.  424;  16  Ves.  242.  In  some  instances  it  has 
been  found  necessary  to  protect  witnesses  from  penalties  to  which  their  evidence 
has  rendered  them  liable  by  an  Act  of  Parliament ;  see  45  Geo.  III.,  c.  126 ;  1  & 
2  Geo.  IV.,  c.  21  ;  Macullum  v.  Turton,  2  Y.  &  J.  183.  In  strictness,  however, 
it  is  no  ground  of  legal  objection  by  the  parties  in  the  cause,  that  the  answer  to 
a  proposed  question  may  place  the  witness  in  jeopardy  ;  it  is  peculiarly  the  ob- 
jection of  the  witness  himself,  who  is  under  the  protection  of  the  law,  and  is 
always  apprised  of  his  situation  by  the  presiding  Judge  :  Parkhurst  v.  Loioten, 
2  Swanst.  216.  The  same  rule  applies  if  the  husband  or  wife  would  be  exposed 
in  like  manner :  Cartwright  v.  Green,  8  Ves.  405  ;  and  whether  the  punishment 
would  be  imposed  by  a  temporal  or  ecclesiastical  Court:  Brownsword  v.  Ed- 
wards, 2  Ves.  245  ;  Chetwynd  v.  Llndon,  Ibid.  450  ;  Finch  v.  Finch,  Ibid.  493. 
Where  a  witness  declined  on  cross-examination  to  state  where  he  lived,  as  he 
believed  that  a  bailable  writ  was  out  against  him  at  the  suit  of  the  defendant, 
the  court  would  not  compel  him  to  answer:  Watson  v.  Bevern,  I  C.  &  P.  (12  E. 
C.  L.  R.)  363. 

'  R.  v.  Barber,  Stra.  444  ;  Maloney  v.  Bartley,  3  Camp.  210,  where,  in  an  action 

disgrace  him,  see  People  v.  Herrick,  13  Johns.  82;  Grannis  v.  Brandon,  5  Day 
260:  State y.  Bailey,  1  Penna.  415  ;  Vaughny.  Paine,  2  Ibid.  728  ;  U.  S.  v.  Craig, 

4  Wash.  C.  C.  729  ;  Sodusky  v.  McGee,  5  J.  J.  Marsh.  621  ;  Southard  v.  Rexford, 
6  Cow.  254 ;  Fries  v.  Brugler,  7  Halst.  79  ;  People  v.  Mather,  4  Wend.  229  ;  U.  S. 
V.  Dickenson.  2  McLean  325 ;  Poole  v.  Perritt,  1  Speers  128 ;  Chdmberlin  v. 
Wilson,  12  Vt  491 ;  People  v.  Rector,  19  Wend.  569 ;  Robinson  v.  Neal,  5  Monr. 
212  ;  Lister  v.  Boker,  6  Blackf  439  ;  Henry  v.  Salina  Bank,  1  Comst.  83 ;  Jan- 
m-in  V.  Sca-mmon,  9  Fost.  280.  But  when  his  objection  to  answer  is,  that  he  may 
thereby  be  subjected  to  a  penalty,  and  it  appears  to  the  court  that  the  statute 
of  limitation  has  bai-red  the  penal  action  or  proceeding,  he  cannot  insist  on  his 
privilege  :  Close  v.  Olney,  1  Denio  319  ;  Bank  v.  Henry,  2  Ibid.  155  ;  s.  c,  3  Denio 
593  ;  Weldon  v.  Burch,  12  111.  374.  If  a  witness  is  called  to  support  a  criminal 
prosecution  and  objects  to  give  his  testimony,  because  it  will  criminate  himself,  but 
is,  nevertheless,  erroneously  compelled  to  testify,  and  the  defendant  is  convicted, 
it  seems  that  the  error  does  not  affect  the  rights  of  the  witness  alone,  but  that 
the  defendant  may  object  that  the  conviction  was  founded  upon  illegal  evidence : 
Comm.  V.  Kimball,  24  Pick.  366.  The  witness,  with  the  instruction  of  the  court 
when  necessary,  must  decide  whether  his  answer  will  tend  to  criminate  him  ; 
and  his  decision  is  upon  oath  at  the  peril  of  perjury  ;  People  v.  Rector,  19  Wend. 
569  ;  Poole  v.  Perritt,  1  Speers  128.  Although  a  witness  is  his  own  judge  as  to 
whether  his  answer  would  criminate  himself,  he  is  nevertheless  liable  to  an 
action  by  the  party  for  a  refusal  to  testify,  if  his  refusal  be  wilful  and  his  excuse 
false :.  Warner  v.  Lucas,  10  Ohio  336.     A  witness  is  bound  to  answer,  thouch 


205  CROSS-EXAMINATION    OF     WITNESSES. 

and  upon  an  appeal  against  an  order  of  bastardy,  he  is  not  bound  to 
declare  whether  he  is  the  father  of  a  bastard  child."  In  an  action 
against  the  acceptor  of  a  bill  of  exchange,  a  witness  is  not  bound  to 
answer  whether  the  bill  was  not  given  for  differences  on  stock-jobbing 
transactions  for  time."  The  prosecutrix  on  an  indictment  for  a  rape 
is  not  bound  to  answer  whether  she  has  had  criminal  intercourse  with 
any  other  person/  An  accomplice,  admitted  to  give  evidence  for 
the  Crown,  is  not  bound  to  disclose  his  share  in  other  offences  which 
are  not  the  subject  of  inquiry,  and  for  which  he  would  be  liable  to 
prosecution.^  A  witness  is  also  protected  from  answering  any  ques- 
r*'^on  ^^*^"  which  would  subject  him  to  any  penalty,  or  to  forfeiture 
of  his  estate/     In  */SYr  J.  Friend's  case,^  it  was  ruled,  that 

for  a  libel  published  in  an  affidavit  sworn  before  a  magistrate,  it  was  held  that 
the  magistrate's  clerk  was  not  bound  to  state  whether  he  wrote  the  affidavit  and 
delivered  it  to  the  magistrate  :  a  bill  of  exceptions  was  tendered,  but  not  pro- 
ceeded in.  In  an  action  for  libel  on  the  plaintiff  as  hundred  constable,  pur- 
porting to  be  a  memorial  from  the  vestry  of  jP.,  the  vestry-clerk  being  called  to 
produce  the  vestry-books,  it  was  held  that  he  could  not  refuse  on  the  ground 
that  he  might  thereby  criminate  himself,  the  books  being  directed  to  be  kept 
by  58  Geo.  III.,  c.  69.  s.  2;  Bradshaw  v.  Murphy,  7  C.  &  P.  (32  E.  C.  L.  R.) 
612. 

"  R.  V.  St.  Mary^s,  Nottingham,  13  East  57,  n. 

^  Thomas  v.  Tucker,  cor.  Lord  Tenterden,  C.  J.,  Sitt.  aft.  Easter,  1827. 

y  R.  V.  Hodgson,  1  Russ.  &  Ry.  C.  C.  211  :  and  see  Dodd  v.  Norris,  3  Camp. 
519.  The  answer  here,  however,  might  have  subjected  the  witness  to  spiritual 
censure  and  punishment. 

^  Wesfs  case,  0.  B.  Sess.  after  Easter  T.  1823. 

"  The  declaratory  statute,  46  Geo.  III.,  c.  '<->!,  imports  that  a  witness  is  not 
bound  to  answer  any  question  the  answering  of  which  tends  to  expose  him  to  a 
penalty  or  forfeiture  of  any  nature  whatever.  So  in  equity  a  party  is  not  bound 
to  answer  so  as  to  subject  himself  to  any  punishment,  pains,  penalties,  or  for- 
feiture of  interest;  see  Mitford's  Ch.  PI.  157.  But  the  full  effect  of  the  privi- 
lege is  not  allowed  in  bankruptcy  :  Ex  parte  Cozzens  re  Worrall,  Buck  531. 

''  13  IIow.  St.  Tr.  1.  But  the  statutes  inflicting  these  penalties  are  now  re- 
pealed. 

he  may  be  thereby  subjected  to  a  pecuniary  liability  :  Bully,  Loveland,  lU  Pick. 
9 ;  Hays  v.  Richardson,  1  Gill  &  Johns.  366  ;  Comm.  v.  Thurston,  7  J.  J. 
Marsh.  62  ;  Naylor  v.  Semmes,  4  Gill  &  Johns.  273  ;  Co])ji  v.  Upham,  3  N.  H. 
159 ;  JJevoll  v.  Brownell,  5  Pick.  448  ;  Baird  v.  Cochran,  4  S.  &  R.  397  ;  Alex- 
ander v.  Knox,  7  Ala.  503  ;  Judge  of  Probate  v.  Green,  1  IIow.  (Miss.)  146  ;  Zol- 
lirkojD'cr  v.  Turner,  iS  Ycrg.  297;  Lowney  v.  Perhatn,  2  App.  235;  Conover  v. 
Bell,  6  Monr.  157  ;  Stevens  v.  Whitcomb,  16  Vt.  121.  AVhen  a  witness  is  sworn 
to  tell  the  whole  truth,  it  means  to  tell  so  much  of  the  truth  as  may  be  compe- 
tent evidence.  He  also  takes  the  oath  subject  to  tlie  qualification  that  he  may 
dfoliiie  to  answer  questions  which  will  criminate  himself:  Comm.  v.  Reid,  1 
Camp.  182.     See  ante,  p.  41,  note. 


DEGRADING    QUESTIONS.  20G 

the  witness  could  not  be  asked  whether  he  was  a  Roman  Catholic, 
since  he  might  thereby  subject  himself  to  penalties.  And  it  has  even 
been  held,  that  a  witness  is  protected  from  admitting  his  commission 
of  an  offence,  although  he  has  received  a  pardon  ;°  for  the  answer 
may  place  him  in  jeopardy,  and  he  would  have  to  set  up  the  pardon 
in  bar  to  the  prosecution.  But  where  a  witness  has  been  guilty  of 
an  infamous  crime,  and  has  been  punished  for  it,  he  may,  it  is  said, 
be  asked  whether  he  has  not  undergone  the  punishment,  because  his 
answer  cannot  subject  him  to  further  punishment.**  And  where  the 
questions  might  subject  the  witness  to  penalties,  but  the  time  for 
proceeding  against  him  is  passed,  he  is  bound  to  answer.®  If  the  wit- 
ness voluntarily  answer  questions  improperly  put,  his  answers  may 
afterwards  be  used  as  evidence  against  him.^  Where  a  witness,  after 
having  been  cautioned  that  he  is  not  compelled  to  answer  a  question 
on  the  ground  that  his  answers  might  subject  him  to  an  indictment, 
answers  at  all,  it  has  been  held  that  he  is  bound  to  disclose  the  whole 
of  the  transaction.^*  If,  however,  the  witness  claims  the  protection 
of  the  court  and  there  appears  reasonable  ground  to  believe  that  his 
answer  would  criminate  him,  but  notwithstanding  he  is  obliged  to 
answer,  what  he  says  must  be  considered  as  obtained  by  a  species  of 
duress,  and  cannot  be  used  in  evidence  against  him.''  And  it  makes 
no  difference  as  to  the  right  of  the  witness  to  protection,  that  r:^,c)(\'7-] 
he  *had  before  answered  in  part.  He  may  claim  his  privi- 
lege at  any  stage  of  the  inquiry.' 

The  protection  has  been  carried  much  further.     It  has   been  held 

"=  E.  V.  Readmg,  7  How.  St.  Tr.  259 ;  E.  v.  Earl  of  Shaftesbury,  6  How.  St. 
Tr.  1171  ;  s.  c.  Moo.  Jb  M.  (22  E.  C.  L.  R.)  193,  note:  but  see  two  next  notes. 

^  E.  V.  Edwards,  4  T.  R.  440  ;  but  see  note  (k),  post,  p.  207. 

'  Roberts  v.  Allatt,  Moo.  &  M.  (22  E.  C.  L.  R.)  192. 

'  Stockfleth  V.  De  Tastet,  4  Camp.  10;  Smith  v.  Beadnell,  1  Camp.  30;  E.  v. 
Merceron,  2  Stark.  C.  (3  E.  C.  L.  R.)  366. 

s  J)ixoH  V.  Vale,  1  C.  &  P.  (12  E.  C.  L.  R.)  278  ;  East  v.  Chapman,  2  C.  &  P. 
(12  E.  C.  L.  R.)  570.  So  in  the  case  of  a  witness  interrogated  in  equity: 
Austin  V.  Prince,  1  Sim.  348. 

"  Eeg.  V.  Garbett,  2  C.  &  K.  (61  E.  C.  L.  R.)  474. 

'  Ibid. 

^  If  he  voluntarily  state  a  fact,  he  is  bound  to  state  how  he  knows  it,  although 

in  so  doing  he  may  expose  himself  to  a  criminal  charge:   State  v.  K ,  4  N. 

H.  562.  If  the  witness  understandingly  waive  his  privilege,  and  begin  to  testify, 
he  must  submit  to  a  full  cross-examination,  if  required  :  Chamberlin  v.  Willson, 
12  Vt.  491  ;  Amherst  v.  Hollis,  9  N.  11.  107  :  Feople  v.  Lohman,  2  Barb.  S.  C. 
Rep.  216  ;  State  v.  Foster,  3  Fost.  348  ;  Coburn  v.  Odell,  10  Fost.  540;  Foster  v. 
Pierce,  11  Cush.  437. 
13 


207  CROSS-EXAMINATION    OF    WITNESSES. 

that  a  witness  is  not  bound  to  answer  any  question  Avhich  tends  to 
render  him  infamous,  or  even  to  disgrace  him,  and  that  such  evidence 
was  inadmissible.  In  Cook's  case,^  Treby,  C.  J.,  said,  "  If  it  be  an 
infamous  thing,  that  is  enough  to  preserve  a  man  from  being  bound  to 
answer;''  and  he  therefore  held  that  persons  convicted  and  par- 
doned, or  convicted  and  punished  for  crimes,  could  not  be  obliged  to 
answer,  since  it  was  matter  of  reproach,  and  that  it  should  not  be  put 
upon  a  man  to  answer  a  question  wherein  he  would  be  forced  to 
forswear  or  disgrace  himself.^  It  is  however  to  be  observed  that  the 
case  of  Tlie  King  v.  Edwards^  is  inconsistent  with  the  above  dictum  ; 
since  it  was  there  held  that  a  person  proposed  as  bail  was  bound  to 
answer  the  question  whether  he  had  stood  in  the  pillory  for  perjury. 

The  question  whether  a  witness  must  answer  questions  which  tend 
to  disgrace  him, "^  is,  like  many  other  difficult  questions  on  the  sub- 
ject of  evidence,  one  of  policy  and  convenience.  On  the  one  hand, 
it  is  highly  desirable  that  the  jury  should  thoroughly  understand  the 
character  of  the  persons  on  whose  credit  they  are  to  decide  upon  the 
property  and  lives  of  others ;  and  neither  life  nor  property  ought  to 
be  placed  in  competition  Avith  a  doubtful  and  contingent  injury  to 
the  feelings  of  individual   witnesses.      On   the   other  hand,  it  may  be 

-J  said  that  it  is  hard   that  a  '^witness  should  be   obliged  upon 

oath  to  accuse  himself  of  a  crime,  or  even  to  disgrace  him- 
self in  the  eyes  of  the  public  ;  that  it  is  a  harsh  alternative  to  compel 
a  man  to  destroy  his  own  character,  or  to  commit  perjury  ;  that  it  is 
impolitic  to  expose  a  witness  to  so  great  a  temptation ;  and  that  it 
must  operate  as  a  great  discouragement  to  witnesses,  to  oblige  them 
to  give  an  account  of  the  most  secret  transactions  of  their  lives  be- 
fore a  public  tribunal.  That  a  collateral  fact  tending  merely  to  dis- 
grace the  witness,  is  not  one  which  is  properly  relevant  to  the  issue, 
since  it  could  not  be  proved  by  any  other  witness  ;  and  that  there 
would  be,  perhaps,  some  inconsistency  in  protecting  a  witness  against 
any  question,  the  answer  to  which  would  subject  him  to  a  pecuniary 
penalty,  and  yet  leave  his  character  exposed. 

"  W,  How.  St.  Tr.  311  ;  1  Salk.  153. 

'  The  question  in  that  case  was,  whether  a  juryman  who  had  been  chal- 
lenged couhi  be  asked  whether  he  had  not  before  the  trial  asserted  the  guilt  of 
the  prisoner. 

"■  4  T.  K.  440.  Sec  Rex  v.  Lewis  and  o/hers,  4  Esp.  C.  225,  where  it  is  said  to 
have  been  ruled,  that  a  witness  could  not  be  asked  whether  he  had  been  in  the 
House  of  Correction  ;  and  Macliride  v.  MacJiride,  4  Esp.  242,  where  it  was 
held  that  a  witness  could  not  be  asked  questions  which  tended  directly  to  dis- 
grace liiin. 

°  See  tit.  Rai'E — Seduction. 


QUESTIONS    TENDING    TO     DISGRACE.  208 

In  the  first  place,  it  is  quite  settled  that  a  man  is  not  bound  to 
criminate  himself,  or  to  answer  any  question  by  which  he  may  incur 
a  penalty."  It  may  be  observed  further,  that  the  principle  extends 
not  only  to  questions  where  the  answer  would  immediately  criminate 
the  witness,  but  to  all  questions  which  tend  collaterally  to  his  convic- 
tion, or  to  supply  any  link  in  proof  of  a  charge  against  him."  As  to 
questions  which  tend  merely  to  disgrace  the  witness,  there  is  some 
difficulty. 

In  Cook's  case,^  the  prisoner,  on  an  indictment  for  high  treason, 
asked  the  jurors,  in  order  to  challenge  them,  whether  they  bad  not 
said  that  he  was  guilty,  and  would  be  hanged  ?  and  the  question  was 
overruled;  and  the  court  said.  You  shall  not  ask  a  witness  or  jury- 
man whether  he  hath  been  whipped  for  larceny,  or  convicted  of 
felony  ;  or  whether  he  was  ever  committed  to  Bridewell  for  a  pil- 
ferer, or  to  Newgate  for  clipping  and  coining  ;  or  whether  he  is  a 
villain  or  outlawed ;  because  that  would  make  a  man  discover  that  of 
himself  which  tends  to  shame,  *crime,  infamy,  or  misde-  r^onn-i 
meaner.  In  this  case  it  is  to  be  recollected  that  the  object 
was  to  exclude  the  juryman  entirely  by  raising  an  objection  to  his 
competency.  The  same  observation  applies  also  to  Layer  s  case,'^ 
where  the  court  overruled  the  attempt  of  the  prisoner  to  ask  a  wit- 
ness on  the  voire  dire,  whether  he  had  been  promised  a  pardon,  or 
some  reward  for  swearing  against  the  prisoner ;  and  in  that  case  L. 
C.  J.  Pratt  said,  If  the  objection  goes  to  his  credit,  must  he  not  be 
sworn,  and  his  credit  left  to  the  jury  ?  No  person  is  to  discredit 
himself,  but  is  always  taken  to  be  innocent  till  it  appear  otherwise. 
The  question,  whether  a  witness  was  bound  to  answer  a  question  upon 
a  collateral  fact  tending  to  disgrace  him,  did  not  arise  in  any  of  the 
foregoing  cases,"  and  therefore  the  dicta  thrown  out  by  the  court  were 

°  See,  as  to  these  two  propositions,  a^ite,  p.  204,  note  (5),  whei-e  the  authorities 
are  collected. 

P  1  Salk.  153;  13  How.  St.  Tr.  311  ;  and  see  the  observations  of  Treby,  J., 
above. 

■J  16  How.  St.  Tr.  101.  The  Chief  J.  (Pratt)  did  not  deny  that  the  question 
might  be  put  after  the  witness  had  been  sworn.  The  cases  of  a  witness  and 
juror  differ  very  materially.  AVith  respect  to  jurors,  no  question  is  properly  al- 
lowable, except  for  the  purpose  of  showing  total  incompetency. 

■■  There  are  many  instances  in  which  a  man  may  be  a  witness  who  cannot  be 
a  juror:  2  Hale  278,  11  H.  4.  One  attainted  and  pardoned  cannot  be  a  juror: 
per  Holt,  C.  J.,  Rookwood's  case,  4  St.  Tr.  G42  ;  but  he  may  be  a  witness.  The 
reason  is,  that  a  juror  cannot  be  examined  and  sifted  as  to  the  grounds  of  his 


209  CROSS-EXAMINATION    OF     WITNESSES. 

in  some  measure,  extra-judicial,  as  far  as  regards  the  present  question. 
In  the  case  of  R.  v.  Leivis,^  which  was  an  indictment  for  an  assault, 
a  witness,  who  is  stated  in  the  report  of  the  case  to  have  been  a  com- 
mon informer,  and  a  man  of  suspicious  character,  was  asked,  upon 
cross-examination,  if  he  had  been  in  tlie  house  of  correction  in  Sus- 
sex ?  And  Lord  Ellenborough  is  stated  to  have  interposed,  and  to 
have  said,  that  the  question  should  not  be  asked,  since  it  had  formerly 
been  settled  by  the  judges,  among  whom  were  C.  J.  Treby  and  Mr.  J. 
Powell,  both  very  great  lawyers,  that  a  witness  was  not  bound  to  an- 
swer any  question  the  object  of  which  *was  to  degrade  or 
L  '^  J  render  him  infamous.  It  is  to  be  observed,  however,  that  his 
Lordship  did  not  afterwards  strictly  adhere  to  this  rule.'  In  the  case 
of  Machride  v.  Machride,'^  a  witness  for  the  plaintiff,  in  an  action  for 
assumpsit,  was  questioned  as  to  her  cohabiting  with  the  plaintiff;  Lord 
Alvanley  interposed,  and  excluded  the  question  ;  but  his  Lordship 
added,  "  I  do  not  go  so  far  as  others  may  ;  I  will  not  say  that  a  wit- 
ness shall  not  be  asked  to  what  may  tend  to  disparage  him  ;  that  would 
prevent  an  investigation  into  the  character  of  the  witness,  which  it 
may  be  of  importance  to  ascertain.  I  think  those  questions  only 
should  not  be  asked  which  have  a  direct  and  immediate  effect  to  dis- 
parage." Upon  the  trial  of  0' Coigly  and  O'Connor,''  the  witness 
having,  upon  a  question  being  put  which  threw  an  imputation  on  him, 
appealed  to  the  court  for  protection  in  the  first  instance,  the  court 
would  not  permit  the  question  to  be  repeated.  In  the  case  of  Harris 
v.  Tippett,'"  the  witness  was  asked  in  cross-examination,  whether  he 
had  not  attempted  to  dissuade  a  witness  for  the  plaintiff  from  attend- 
ing the  trial ;  he  swore  that  he  had  not ;  and  on  its  being  proposed  to 
bring  evidence  to  contradict  the  witness  on  this  point,  Mr.  J.  Law- 
rence would  not  allow  it,  the  fact  being  collateral  to  the  issue ;  but  he 
added,  "  I  will  permit  questions  to  be  put  to  a  witness  as  to  any  im- 
proper conduct  of  which  he  may  have  been  guilty,  for  the  purpose 

verdict,  as  a  witness  may  as  to  his  testimony.      The  ancient  rule  of  law  was 
otherwise. 

•  4  Esp.  C.  225.     . 

*  At  the  sittings  of  Westminster  after  Ilil.  Term,  1818,  a  witness  was  compelled 
by  his  Lordship  to  answer  the  question  whetlier  he  had  not  been  confined  in  a 
particular  j^aol  ;  infra,  p.  212,  note  (z). 

"  4  Ksp.  C.  242;  but  see  supra,  p.  201. 
"  24  How.  St.  Tr.  1353. 

"  2  Camp.  C37,  cited  in  It.  v.  Walsuii,  2  Stark.  C.  (3  E.  C.  L.  R.)  110;  but  see 
SHprtij  p.  201. 


QUESTIONS    TENDING    TO     DISGRACE.  210 

of  trying  his  credit ;  but  when  those  questions  are  irrelevant  to  the 
issue  upon  *record,  you  cannot  call  other  witnesses  to  con-    ^  ^ 

,  .         .  ,  r*2iii 

tradict  the  answers  he  gives."  And  in  Yewins  case^^  the  •-  -■ 
same  learned  judge  allowed  the  prisoner's  counsel  to  ask  a  witness 
in  cross-examination,  whether  he  had  not  been  charged  with  robbing 
his  master.  Where  a  man's  liberty,  or  even  life,  depends  upon  the 
testimony  of  another,  it  is  of  infinite  importance  that  those  who  are 
to  decide  upon  that  testimony  should  know,  to  the  greatest  extent, 
how  far  the  witness  is  to  be  trusted  ;  they  cannot  look  into  his  breast 
and  see  what"  passes  there,  but  must  form  their  opinion  on  collateral 
indications  of  his  good  faith  and  sincerity.  Whatever,  therefore, 
may  materially  assist  them  in  their  inquiry,  is  most  essential  to  the 
investigation  of  truth  ;  and  it  cannot  but  be  material  for  the  jury  to 
understand  the  character  of  the  witness  whom  they  are  called  to  be- 
lieve ;  and  to  know  whether,  although  he  has  not  been  actually  con- 
victed of  any  crime,  he  has  not  in  some  measure  rendered  himself 
less  credible  by  his  disgraceful  conduct.  In  the  case  of  The  King  v. 
Edwards/  on  an  application  to  bail  the  prisoner,  who  was  charged 
with  felony,  one  of  the  bail  was  asked,  whether  he  had  not  stood  in 
the  pillory  for  perjury  ?  and  upon  objection  being  made  that  it  tended 
to  criminate  the  party,  the  court  held  that  there  was  no  impropriety 
in  the  question,  since  his  answer  could  not  subject  him  to  any  punish- 
ment. 

The  great  question,  therefore,  whether  a  witness  is  hound  to  an- 
swer a  question  to  his  own  disgrace,  has  not  yet  undergone  any  di- 
rect and  solemn  decision,  and  appears  to  be  still  open  for  considera- 
tion. The  truth  or  falsehood  of  testimony  frequently  cannot  be 
ascertained  by  mere  analysis  of  the  evidence  itself;  the  investigation 
requires  collateral  and  extrinsic  aids,  the  principal  of  which  con- 
sists in  a  knowledge  of  the  source  or  depository  from  which  such 
testimony  is  derived  :  the  whole  question  resolves  itself  into  one  of 
policy  and  convenience,  that  is,  whether  it  *would  be  a  r:|.9-|9-| 
greater  evil  that  an  important  test  of  truth  should  be 
sacrificed,  or  that  by  subjecting  witnesses  to  the  operation  of  this 
test,  their  feelings  should  be  wounded,  and  their  attendance  for  the 
purposes  of  justice  discouraged  ?  The  latter  point  seems  to  deserve 
the  more  serious  consideration,  since  the  mere  offence  to  the  private 
feelings  of  a  witness  who  has  misconducted  himself  cannot  well  be 
put  in  competition  with  the  mischief  Avhich  might  otherwise  result  to 
the  liberties  and  lives  of  others.  No  great  injustice  is  done  to  any 
^  2  Camp.  638,  n.  y  4  T.  R.  440. 


212  CROSS-EXAMINATION     OF    WITNESSES. 

individual  upon  •whose  oath  the  property  or  personal  security  of 
others  is  to  depend,  in  exhibiting  him  to  the  jury  such  as  he  is.  As 
to  the  other  consideration,  it  does  not  seem  to  be  very  clear  that  by 
permitting  such  examinations  any  serious  evil  would  result ;  the  law 
possesses  ample  means  for  compelling  the  attendance  of  witnesses, 
however  unwilling  they  may  be.  The  evil  on  this  side  of  the  ques- 
tion is  at  all  events  doubtful  and  contingent ;  on  the  other  side  it  is 
plain  and  certain. 

The  principle  on  which  such  evidence  is  admissible  is  clear  and 
obvious ;  the  reason  for  excluding  it  is  extrinsic  and  artificial,  and, 
it  may  be  added,  but  theoretical  ;  for  courts  are  in  the  constant  habit 
of  permitting  such  questions  to  be  put,*  and  answers  to  be  given  and 
received  as  evidence  for  the  consideration  of  the  jury, 
r^oio"!  *The  decision  of  this  question  is  of  less  practical  import- 
ance than  might  have  been  expected,  since,  whether  a  witness 
be  or  be  not  bound  to  answer  such  questions  as  tend  to  his  disgrace, 
it  seems  to  be  allowed  that  the  questions  may  be  put;*  and  it  is  ob- 
viously of  little  consequence  whether  the  witness  admits  that  which 
is  insinuated  against  him,  or  refuses  to  answer  the  question  ;  for 
though  in  strictness  no  inference  ought  to  be  made  as  to  the  truth  of 

^  In  the  case  of  Frost  v.  Hallotvay^  K.  B.  sitt.  after  Ilil.  Term.  1818,  Lord 
Ellenborough,  C.  J.,  compelled  a  witness  to  answer  whether  he  had  not  been 
confined  for  theft  in  gaol  ;  and,  on  the  witness's  appealing  to  the  Court,  said, 
"If  you  do  not  answer  I  will  send  you  there;"  Ex  relatione  Gurnet/.  In  the 
case  of  Cundell  v,  Pratt,  Moo.  &  M.  (22  E.  C.  L.  11.)  108  ;  the  witness  was  asked, 
on  cross-examination,  whether  she  was  not  cohabiting  in  a  state  of  incest  with 
a  particular  individual ;  Best,  C.  J.,  interfered  to  prohibit  the  question ;  it  was 
urged  by  Spankie,  Serjt.,  that  he  had  a  right  to  put  questions  tending  to  degrade 
a  witness,  for  the  purpose  of  trying  his  character ;  but  Best,  C.  J.,  said :  "  I  do 
not  forbid  the  question  on  that  ground  ;  I  for  one  will  never  go  that  length. 
Until  I  am  told  by  the  House  of  Lords  I  am  wrong,  the  rule  I  shall  always  act 
upon  is,  to  protect  w'tnesses  from  questions,  the  answers  to  which  may  expose 
them  to  punishment.  If  they  are  protected  beyond  this,  from  questions  that 
tend  to  degrade  them,  many  an  innocent  man  would  unjustly  suffer.  This 
question-  may  subject  her  to  punishment ;  I  think,  therefore,  it  ought  not  to  be 
put."  In  point  of  practice,  sucli  questions  are  every  day  put  and  answers  ex- 
acted. And  now,  when  infiimy  forms  no  objection  to  a  witness's  competency, 
and  therefore  a  party  would  not  be  allowed  to  adduce  evidence  upon  the  point 
{Harris  v.  Tippett,  2  Camp.  637),  it  seems  to  be  essential  to  the  ends  of  justice 
that  the  witness  should  be  compelled  to  answer  such  questions. 

■  Harris  v.  Ti]>/>f'ft,  2  Camp.  638;  Lord  Cockrane's  trial,  by  Gurney,  p.  419; 
Jlardji's  case,  24  lloweirs  St.  Tr.  72() ;  R.  v.  Yewin,  2  Camp.  638,  n.;  E.  v. 
Wahon,  2  Stark.  C.  (3  E.  C.  L.  R.)  1 16. 


EFFECT    OF    ANSWERS.  213 

the  fact  where  the  Avitncss  has  refused  to  answer,''  yet  the  refusal 
must  make  an  unfavorable  impression  upon  the  jury,  since  an  honest 
man  would  naturally  be  eager  to  deny  the  fact  and  rescue  his  char- 
acter from  suspicion,  and  would  not  refuse  to  answer  merely  because 
he  had  a  strict  legal  right  to  refuse.* 

Where  the  question  is  so  connected  with  the  point  in  issue  that 
the  witness  may  be  contradicted  by  other  evidence  if  he  deny  the 
fact,  the  law  itself  requires  that  the  question  should  be  put  to  the 
witness,  in  order  to  afford  him  an  opportunity  for  explanation, 
although  the  answer  may  involve  him  in  consequences  highly  penal. "^ 
It  was  held  by  all  the  judges,  not  only  that  a  question,  as 
*to  an  act  done  by  the  witness,  the  answer  to  which  might  r*9i4^-i 
criminate  him,  might  be  put,  in  order  to  afford  a  foundation 
for  contradicting  him  if  he  denied  the  fact,  but  even  that  the  adverse 
party  could  not,  without  asking  the  question,  adduce  such  evidence  to 
impeach  the  credit  of  the  witness.' 

The  privilege  of  refusing  to  answer  is  that  of  the  witness,  and  not 
of  the  party  ;  and  Lord  Tenterden  refused  to  allow  the  question  to 
be  argued  by  the  counsel  of  the  party  who  called  the  witness/ 

It  was  formerly  thought  that  if  a  witness  voluntarily  answered 
questions  tending  to  criminate  him  on  his  examination  in  chief,  he 
was  bound  to  answer,  on  cross-examination,  however  penal  the  conse- 
quence might  be,  and  if  he  answered  the  question  in  part,  he  was 
bound  to  disclose  the  whole  truth  ;^  but  on  consideration  by  the  whole 
of  the  judges,  it  has  been  held  by  a  majority  that  a  witness  after 
having  answered  some  questions  may  stop  at  any  moment  and  claim 

^  Rose  V.  Blalceman,  Ry.  &  M.  (21  E.  C.  L.  R.)  383 ;  see  Lord  Ellenborough's 
remarks  in  Mihnan  v.  Tucl-er,  2  Peake  N.  P.  C.  222. 

"  See  the  observations  of  the  Judges  in  B.  v.  Watson,  2  Stark.  C.  (3  E.  C.  L. 
R.)  116. 

■*  The  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  311. 

®  Ibid.     Thus  in  an  action  against  A.  for  seducing  plaintiflTs  daughter,  which 
fact  the  daughter  proved,  it  was  held  the  defendant  could  not  give  evidence  that 
she  had  talked  of  B.  as  her  seducer  and  the  father  of  her  child,  unless  she  had 
been  first  asked  in  cross-examination  whether  she  had  ever  said  so :  Carpenter  ■ 
V.  Wall,  11  Ad.  &  E.  (39  E.  C.  L.  R.)  803. 

'By  Lord  Tenterden,  in  Thomas  v.  Newton,  Moo.  &  M.  (22  E.  C.  L.  R.)  48, 
n. ;  R.  V.  Adeij,  1  M.  &  Rob.  94 ;  and  it  seems  doubtful  whether  the  court  can 
review  the  decision  of  a  judge,  when  he  has  compelled  the  witness  to  answer 
or  produce  the  document:  see  Marston  v.  Downes,  1  Ad.  &  E.  (28  E.  C.  L.  R.) 
34 ;  Doe  V.  Date,  3  Q.  B.  (43  E.  C.  L.  R.)  609. 

«  Per  Dampier,  J.,  Winchester  Sum.  Ass.  1815,  Mann.  Index,  Witness,  222; 
East  V.  Chapman,  Moo.  &  M.  (22  E.  C.  L.  R.)  47. 


214  CROSS-EXAMINATION    OF    WITNESSES. 

his  privilege,  and  that  if  the  judge  nevertheless  force  him  to  proceed, 
what  he  says  cannot  be  made  use  of  against  him  in  a  criminal  pro- 
ceeding.'' If,  however,  the  witness  voluntarily  choose  to  answer  a 
question  to  which  he  might  have  demurred,  his  answer  may  after- 
wards be  used  in  evidence  against  him  for  all  purposes.* 
r*.9-|  r.-\  *I^  a  witness  give  an  answer  to  a  question  put  for  the  pur- 
pose of  degrading  his  character,  the  party  will  be  bound  by 
his  answer,  and  cannot  adduce  evidence  in  contradiction.^  This  is 
but  a  particular  application  of  the  general  rule  applicable  in  all  cases 
of  inquiry  as  to  mere  collateral  facts. 

If  by  an  unfortunate  or  unskilful  question  put  on  cross-examina- 
tion a  fact  be  extracted  which  would  not  have  been  evidence  upon  an 
examination   in  chief,  it  then  becomes  evidence  against  the  party  so 
r*oin    cross-examining.'^      *But  a  witness  is  not  allowed  volunta- 
rily to  obtrude  inadmissible  evidence,  and  if  he  do,  it  is  not 

^  Reg  V.  Garbef,  2  Car.  &  K.  (61  E.  C.  L.  R.)  474. 

•  Smith  V.  Beadnell^  ]  Camp.  30;  Stochfleth  v.  De  Tastet,  4  Camp.  10. 

J  Lord  Ellenborough,  in  Watsoii's  case,  Gurney's  Rep.,  vol.  ii.,  288,  observed, 
"  Whether  he  has  been  guilty  of  such  a  crime  is  improperly  asking  him  in  a 
degree,  because  you  are  calling  upon  him,  upon  the  sanction  of  his  oath,  to 
answer  that  which  he  is  not  bound  to  answer,  for  no  man  is  bound  to  criminate 
himself;  but  if,  from  a  desire  to  exculpate  himself  from  the  imputation  of  a 
crime,  he  gives  an  answer,  it  has  been  held  by  many  of  our  judges,  and  I  never 
knew  it  ruled  to  the  contrary,  that  having  put  such  question  he  must  be  bound 
by  the  answer.  The  court  is  not  a  court  to  try  a  collateral  question  of  crime, 
and  it  would  be  unjust  if  it  were;  for  how  can  the  party  be  prepared  with  a 
case  of  exculpation,  or  with  an  answer  to  any  evidence  which  may  be  adduced 
to  charge  him  ?  There  is  no  possibility  of  a  fair  and  competent  trial  on  that 
subject,  and  therefore  in  no  instance  is  it  done." 

"  Wrvjht  dem.  Chjmer  v.  LUtter,  Burr.  1244  ;  1  Bla.  346.  The  lessor  of  the 
plaintiff'  claimed  under  a  will  dated  1743.  The  defendant  relied  on  a  will  bear- 
ing date  1745.  The  plaintiff",  in  answer,  called  Mary  T7c/o;',  the  sister  of  William 
Mediicoti,  deceased,  whose  name  appeared  as  an  attesting  witness  to  the  will  of 
1745,  to  prove  that  her  brother,  in  his  last  illness,  and  three  weeks  before  his 
death,  pulled  out  of  his  bosom  the  will  of  1743,  and  said  it  was  the  true  will  of 
/.  C  Upon  cross-examination  by  the  counsel  for  the  defendants,  the  witness 
further  stated  that  her  brother,  when  he  produced  the  will  of  1743,  acknow- 
ledged and  declared  that  the  will  of  1745  was  forged  by  himself.  After  a  verdict 
for  the  plaintiff,  upon  a  motion  for  a  new  trial,  upon  the  ground,  inter  alia,  that 
the  declaration  by  Mcdlicott  of  his  having  forged  the  will  of  1745  ought  not  to 
have  been  left  to  the  jury,  it  was  answered  by  the  court  that  the  fact  came 
out  upon  the  defendant's  own  cross-examination,  and  he  made  no  objection  to  it 
at  the  trial.  See  the  observations  on  tiiis  case  in  Sfobart  v.  Bryden,  1  M.  &  W. 
624,  625.  it  would  thence  appear  that  tlic  statement  in  the  text  is  by  no  means 
clear. 


AS    TO    WRITINGS,     TO    ESTABLISH    DOCUMENTS.        216 

to  be  considered  as  evidence  in  the  cause. ^  This  is  a  just  and  most 
important  rule ;  a  fraudulent  and  subtle  witness  will  sometimes  en- 
deavor to  baffle  bis  cross-examiner,  and  deter  him  from  pursuing  his 
course  by  introducing  into  his  answers  matters  foreign  to  the  ques- 
tion, but  unfavorable  to  the  cross-examining  party. 

Where  a  witness  is  cross-examined  as  to  writing,  the  examination 
is  conducted  with  a  view  either  to  establish  in  evidence  the  contents 
of  a  written  document  as  material  to  the  cause,  or  to  test  the  mem- 
ory or  the  credit  of  the  witness.  In  the  former  view,  the  subject  of 
cross-examination  has  been  the  object  of  much  consideration  by  the 
judges. 

In  the  course  of  the  proceedings  in  the  House  of  Lords  in  The 
Queen  s  case,  Louisa  Dumont,  a  witness  in.  support  of  the  charge, 
having  been  asked,  upon  cross-examination,  whether  she  did  not  use 
certain  expressions  which  the  counsel  read  from  a  supposed  letter 
from  the  witness  to  her  sister,  it  was  objected  by  the  Attorney-Gen- 
eral that  the  letter  itself  ought  to  be  put  in  before  any  use  could  be 
made  of  its  contents. 

The  following  questions  were  in  consequence  proposed  to  the 
judges :" 

First.  Whether  in  the  courts  below  a  party,  on  cross-examination, 
would  be  allowed  to  represent  in  the  statement  of  a  question  the  con- 
tents of  a  letter,  and  to  ask  the  witness  whether  the  witness  wrote  a 
letter,  to  any  person  with  such  contents,  or  contents  to  the  like  eflFect, 
without  having  first  shown  to  the  witness  the  letter,  and  having  asked 
that  witness  whether  the  witness  wrote  the  letter,  and  his  admitting 
that  he  wrote  such  a  letter  ? 

^Secondly.  Whether,  when  a  letter  is  produced  in  the  r*9-i7i 
courts  below,  the  court  would  allow  a  witness  to  be  asked, 
upon  showing  the  witness  only  a  part  of  or  one  or  more  lines  of  such 
letter,  and  not  the  whole  of  it,  whether  he  wrote  such  part,  or  such 
one  or  more  lines  ;  and  in  case  the  witness  shall  not  admit  that  he 
did  or  did  not  write  the  same,  the  witness  can  be  examined  to  the 
contents  of  such  letter? 

The  first  question  was  answered  in  the  negative,  for  the  following 
reasons : — "  The  contents  of  every  written  paper  are,  according  to 
the  ordinary  and  well-established  rules  of  evidence,  to  be  proved  by 

1  BlewettY.  Tregonning,  3  Ad.  &  E.  (30  E.  C.  L.  R.)  554.  Consequently,  if  any 
dispute  arise  as  to  such  inadmissible  evidence,  the  witness  will  not  be  recalled 
to  settle  it:   CaWiii  v.  Barker,  5  C.  B.  (57  E.  C.  L.  R.)  201. 

""  The  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  11.)  286. 


217  CROSS-EXAMINATION     OF    WITNESSES. 

the  paper  itself  and  by  that  alone,  if  the  paper  be  in  existence. 
The  proper  course,  therefore,  is  to  ask  the  witness  whether  or  no  that 
letter  is  of  the  handwriting  of  the  witness  ?  If  the  witness  admits 
that  it  is  of  his  or  her  handwriting,  the  cross-examining  counsel  may, 
at  his  proper  season,  read  that  letter  as  evidence,  and  when  the  let- 
ter is  produced  then  the  whole  of  the  letter  is  made  evidence.  One 
of  the  reasons  for  the  rule  requiring  the  production  of  written  in- 
struments is,  in  order  that  the  court  may  be  possessed  of  the 
whole.  If  the  course  which  is  here  proposed  should  be  followed,  the 
cross-examining  counsel  may  put  the  court  in  possession  only  of  a  part 
of  the  contents  of  the  written  paper ;  and  thus  the  court  may  never 
be  in  possession  of  the  whole,  though  it  may  happen  that  the  whole, 
if  produced,  may  have  an  eifect  very  diiTerent  from  that  which  might 
be  produced  by  a  statement  of  a  part." 

To  the  second  question  the  judges  returned  the  following  answer ; 
— "  In  answer  to  the  first  part,  '  Whether,  when  a  letter  is  produced 
in  the  courts  below,  the  court  would  allow  a  witness  to  be  asked,  upon 
showing  the  witness  only  a  part  or  one  or  more  lines  of  such  letter, 
and  not  the  whole  of  it,  whether  he  wrote  such  part?'  the  judges  are 
of  opinion  that  that  question  should  be  answered  by  them  in  the 
affirmative  in  that  form ;  but  in  answer  to  the  latter  part,  which  is 
r*9l  81  ^^'^^'  '  ^'^^  ^'^  ^^^^  *^®  ^witness  shall  not  admit  that  he  did  or 
did  not  write  such  part,  whether  he  can  be  examined  as  to 
the  contents  of  such  letter  V  the  learned  judges  answer  in  the  nega- 
tive, for  reasons  already  given,  namely,  that  the  paper  itself  is  to  be 
produced  in  order  that  the  whole  may  be  seen,  and  the  one  part  ex- 
plained by  the  other." 

Upon  the  further  question  proposed,  "  Whether,  when  a  witness  is 
cross-examined,  and,  upon  the  production  of  a  letter  to  the  witness 
under  cross-examination,  the  witness  admits  that  he  wrote  that  letter, 
the  witness  can  be  examined  in  the  courts  below,  whether  he  did  or 
did  not  make  statements  such  as  the  counsel  shall,  by  questions  ad- 
dressed to  the  witness,  inquire  are  or  are  not  made  therein ;  or 
whether  the  letter  itself  must  be  read  as  the  evidence  to  manifest 
that  such  statements  are  not  contained  in  the  letter?"  The  judges 
were  of  opinion,  that  the  counsel  cannot,  by  questions  addressed  to 
the  witness,  inquire  whether  or  no  such  statements  are  contained  in 
the  letter,  but  that  the  letter  itself  must  be  read  to  manifest  whether 
sucl)  statements  are  or  are  not  contained  in  that  letter.  They  found 
their  opinion  upon  what,  in  their  opinion,  is  a  rule  of  evidence  as  old 
as  any  part  of  the  common  law  of  England,  namely,  that  the  con- 


AS    TO     WRITINGS,     TO     ESTABLISH     DOCUMENTS.        218 

tents  of  a  written  instrument,  if  it  be  in  existence,  are  to  be  proved 
by  that  instrument  itself  and  not  by  any  parol  evidence. 

To  another  question,  viz  :  "  In  what  stage  of  the  proceedings,  ac- 
cording to  the  practice  of  the  courts  below,  such  letter  could  be  re- 
quired by  counsel  to  be  read,  or  be  permitted  by  the  court  below  to 
be  read,"  the  learned  judges  answered,  that  according  to  the  ordi- 
nary rule  of  proceedings  in  the  courts  below,  the  letter  is  to  be  read 
as  the  evidence  of  the  cit)ss-examining  counsel,  as  part  of  his  evidence 
in  his  turn,  after  he  shall  have  opened  his  case:  that  that  is  the 
ordinary  course ;  but  that,  if  the  counsel  who  is  cross-examining,  sug- 
gests to  the  court  that  he  Avishes  to  have  the  letter  read  immediately 
in  order  that  *he  may  after  the  contents  of  that  letter  shall  r^oiQi 
have  been  made  known  to  the  court,  found  certain  questions 
upon  the  contents  of  that  letter,  which  could  not  well  or  effectually 
be  done  without  reading  the  letter  itself,  that  becomes  an  excepted 
case  in  the  courts  below ;  and  for  the  convenient  administration  of 
justice  the  letter  is  permitted  to  be  read  at  the  suggestion  of  the 
counsel ;  but  considering  it,  however,  as  part  of  the  evidence  of  the 
counsel  proposing  it,  and  subject  to  all  the  consequences  of  having 
such  letter  considered  as  part  of  his  evidence. 

In  the  course  of  the  same  proceeding,  the  counsel  for  the  Queen, 
having  cross-examined  Cruiseppe  Sacchi,  whether  he  had  ever  repre- 
sented to  any  person  after  he  had  left  the  service  of  the  princess, 
that  he  had  taxed  himself  with  ingratitude  towards  a  generous  mis- 
tress; it  was  objected,  that  the  witness  should  be  asked  whether  such 
representation  made  by  him  was  an  oral  or  written  one,  because,  if 
written,  the  writing  itself  should  be  produced  before  the  question 
could  be  put.  The  following  question  was  in  consequence  proposed 
to  the  judges  :  "  Whether,  according  to  the  established  practice  in  the 
courts  below,  counsel,  in  cross-examining,  are  entitled,  if  the  counsel 
on  the  other  side  object  to  it,  to  ask  a  witness  whether  he  has  made 
representations  of  a  particular  nature,  not  specifying  in  his  question 
whether  the  question  refers  to  representations  in  writing  or  in  words?" 

The  Lord  Chief  Justice,  in  delivering  the  opinions  of  the  judges, 
observed  that  they  felt  some  diflBculty  in  giving  a  distinct  answer  to 
that  proposition,  as  they  did  not  remember  an  instance  of  a  question 
having  been  asked  by  the  cross-examining  counsel,  precisely  in  those 
words,  and  were  not  aware  of  any  established  practice  distinctly 
referring  to  such  a  question.  He  adverted  to  the  rule  of  law  re- 
specting the  examination  of  a  witness  as  to  a  contract  or  agreement, 
in  which  case,  if  the  counsel  on  one  side  were  to  put  a   question 


219  CROSS-EXAMINATION     OF    WITNESSES. 

generally  as  to  the  contract,  the  ordinary  course  is  for  the  counsel 
r*9O01  °"  ^^^  other  side  to  ^interpose  an  immediate  question,  whether 
the  contract  referred  to  was  in  writing,  and  if  the  contract 
should  appear  to  have  been  in  writing,  then  all  further  inquiry  would 
be  stopped,  because  the  writing  itself  must  be  produced.  With 
reference  to  this  established  rule,  they  considered  the  question  .pro- 
posed to  them,  and  were  of  opinion  that  the  witness  could  not 
properly  be  asked  on  cross-examination,  whether  he  had  written  such 
a  thing,  the  proper  course  being  to  put  the  writing  into  his  hands, 
and  ask  him  whether  it  be  his  writing.  They  held,  also,  that  if  the 
witness  were  asked  whether  he  had  represented  such  a, thing,  they 
should  direct  the  counsel  to  ask  whether  the  representation  had  been 
made  in  writing  or  by  words;  and  if  in  consequence  he  should  ask 
whether  it  had  been  made  in  writing,  the  counsel  on  the  other  side 
would  object  to  the  question  ;  but  if  he  should  ask  whether  the  wit- 
ness had  said  such  a  thing,  the  counsel  would  undoubtedly  have  a 
right  to  put  that  question. 

It  seems  to  be  perfectly  clear,  that  if  it  appear  from  the  cross- 
examination  of  the  witness,  or  from  any  antecedent  evidence,  that 
the  writing  in  question  has  been  destroyed,  the  objection  founded  on 
the  reasons  alleged  by  the  learned  judges  ceases ;  and  as  the  defend- 
ant may  at  all  events,  in  his  turn,  adduce  secondary  evidence  of  the 
contents,  there  is  no  objection  to  his  proving  the  contents  in  the  first 
instance  by  means  of  the  adversary's  witness.  Thus  it  has  been 
held,  Avhere  depositions  have  been  taken  and  lost,  a  witness,  after 
proof  of  the  loss,  may  be  cross-examined  from  copies."  And  in  order 
to  let  in  this  secondary  evidence,  the  cross-examining  party,  before 
or  during  the  cross-examination,  may  call  a  person  on  his  subpoena 
r*99-|-i  duces  tecum  to  produce  the  writing,"  or  *call  on  the  adver- 
sary so  to  do,  if  he  has  had  notice  to  produce.^ 

It  is  to  be  observed,  that  the  opinions  delivered  by  the  judges 
upon  the  preceding  questions,  were  founded,  for  the  most  part,  on 
the  principle  that  the  best  evidence  must  be  adduced  which  the  case 
admits  of,  and  on  the  supposition  that  the  object  of  the  cross-exami- 
nation is  to  establish  in  evidence  the  contents  of  a  written  document 

°  R.  V.  Skellard,  9  C.  &  P.  (38  E.  C.  L.  R.)  277.  So  he  may  be  cross-examined 
upon  an  office  copy  of  an  affidavit  used  on  moving  for  a  new  trial,  which  on  a 
summons  luis  been  admitted  to  be  a  true  copy :  Davies  v.  Davies,  9  C.  &  P.  (38 
E.  C.  L.  11.)  252 ;  Atlorney-General  v.  Bond,  9  C.  &  P.  (38  E.  C.  L.  K.)  189. 

"  Atloniei/- General  v.  Bond,  9  C.  &  P.  189. 

P  Calvert  v.  Flower,  7  C.  &  P.  (32  E.  C.  L.  R.)  386. 


AS    TO     WRITINGS,     TO     TEST    CREDIT.  221 

as  material  to  the  cause.     Where  that  is  the  case,  the  objection  is  in- 
vincible. 

But  it  frequently  happens  that  the  cross-examination  of  a  -witness 
as  to  wliat  he  has  before  said  or  written  on  the  subject  of  inquiry,  is 
material  only  as  a  test  to  try  his  memory  and  his  credit. 

Such  evidence  is  usually  admissible  forno  other  purpose  than  to  try 
the  credit  or  capacity  of  the  witness.  What  a  witness  stated  on  a 
former  occasion  may  be  very  material  evidence  to  contradict  him,  or 
impeach  his  testimony,  but  can  rarely  be  evidence  of  the  fact  stated ; 
and  it  is  a  remarkable  circumstance,  tliat  the  question  was  never,  in 
the  course  of  inquiry  in  the  case  which  occasioned  so  much  discus- 
sion on  the  subject,  directly  raised,  whether  a  cross-examination  as 
to  something  written  by  the  witness,  for  the  purpose,  not  of  proving 
any  fact  in  the  cause,  but  simply  of  trying  the  credit  or  ability  of 
the  witness,  was  subject  to  the  same  strict  rules  as  governed  exami- 
nation for  proving  material  facts,  and  whether  the  witness  might  not 
be  cross-examined  as  to  what  he  had  written,  without  producing  the 
writing,  where,  although  not  proved  to  be  lost,  it  was  not  in  the 
possession  of  the  examining  party.  It  is  also  observable  that  the 
answers  are  founded  mainly,  if  not  -wholly,  on  the  supposition  that 
the  writing  to  which  the  question  relates  is  in  the  possession  of  the 
examining  party. 

As  the  decisions  of  the  judges  have,  according  to  opinions  entitled 
to  consideration,  left  the  question,  whether  a  witness  may  not  be 
cross-examined  as  to  the  contents  of  a  *written  document,  r^nnc)-] 
for  the  purpose  of  impeaching  his  credit,  without  producing 
the  document,  still  open,  it  may  not  perhaps  be  deemed  presumptuous 
to  offer  a  very  few  remarks  upon  this  subject. 

Upon  every  question  of  this  nature  two  considerations  arise :  in 
the  first  place,  whether  the  practice  be  advantageous  and  desirable 
with  reference  to  some  particular  object ;  and  if  so,  still  whether,  on 
the  other  hand,  it  may  not  be  politic  to  exclude  it,  in  order  to  avoid 
some  inconvenience  which  would  result  from  its  reception  greater  than 
that  which  would  accrue  from  its  rejection. 

That  the  permitting  such  a  cross-examination  may  frequently 
supply  a  desirable  test  for  trying  the  memory  and  the  credit  of  the 
witness,  admits  of  little  doubt.  If,  for  example,  a  witness  profess  to 
give  a  minute  and  detailed  account  of  a  transaction  long  past,  such 
as  the  particulars  of  a  conversation,  or  the  contents  of  a  written 
document,  and  consequently  where  much  depends  upon  the  strength 
of  his  memory,  it  is    most  desirable   to  put   that  memory  to  the  test 


222  CROSS-EXAMINATION     OF    WITNESSES. 

by  every  fair  and  competent  means.  His  inability  under  those  cir- 
cumstances to  state  whether  he  afterwards  committed  the  details  of 
the  transaction  to  writing,  or  if  he  admitted  that  he  did  so,  his  in- 
ability to  state  whether  he  then  gave  the  same  or  a  different  account, 
or  his  admission  that  he  gave  a  different  account,  Avithout  being  able 
to  explain  why  he  did  so,  must  necessarily  operate  to  a  greater  or  less 
extent  to  show  the  imperfection  of  his  memory. 

If  a  witness  be  called  to  prove  the  contents  of  a  document  written 
by  another,  which,  it  may  be,  he  has  seen  but  once,  and  that  at  a 
distant  time,  must  it  not  be  of  the  highest  importance  to  ascertain 
whether  his  powers  of  memory  are  sufficiently  strong  to  enable  him 
to  swear  to  the  contents  of  a  document  written  by  himself  at  a  later 
period  relating  to  the  same  subject-matter  ?  If  he  either  deny  that 
he  has  made  any  representation  on  the  subject,  or  be  unable  to  re- 
r*99q-i  Collect  what  statement  he  has  made,  *the  circumstance  tends 
to  impeach  the  faithfulness  of  his  memory,  even  to  a  greater 
extent  than  if  the  representation  had  been  merely  oral,  inasmuch  as 
the  act  of  Avriting  is  more  deliberate,  and  more  likely  to  remain  im- 
pressed on  the  memory  than  a  mere  oral  communication  ;  and  the 
contradiction  Avhich  the  witness  receives  from  the  writing  itself  is 
also  more  important  and  more  complete  than  that  which  results  from 
the  testimony  of  another,  whose  memory  may  be  as  liable  to  imper- 
fection as  that  of  the  witness. 

A  cross-examination  of  this  nature  affords  no  mean  test  for  trying 
the  integrity  of  the  witness.  An  insincere  witness,  who  is  not  aware 
that  his  adversary  has  it  in  his  power  to  contradict  him,  will  fre- 
quently deny  having  made  declarations  and  used  expressions  which 
he  is,  on  cross-examination,  ultimately  forced  to  avow  ;  and  it  often 
happens,  that  by  his  palpable  and  disingenuous  attempts  to  conceal 
the  truth,  he  betrays  his  real  character  ;  and  thus  his  denials,  his 
manner  and  conduct,  become  of  far  greater  importance,  and  much 
more  strongly  impeach  his  credit  than  the  answer  itself  does,  which 
he  is  at  last  reluctantly  constrained  to  give. 

Where  the  party  is  confined  to  the  mere  production  and  reading 
of  the  paper,  without  previous  cross-examination,  all  inferences  of 
this  nature  are  obviously  excluded,  and  the  opportunity  of,  contra- 
dicting him  by  the  production  of  the  document  in  opposition  to  his 
statement  on  oath,  cannot  occur. 

These  observations  apply  even  although  the  writing  containing  the 
contradiction  be  in  the  possession  of  the  party  who  cross-examines; 
but  it  may   frequently   happen  that  the  document  may  have   been 


AS    TO     WRITINGS,    TO     TEST     CREDIT.  223 

lost,  but  that  proof  of  the  loss,  and  of  the  contents  of  the  document, 
are  in  the  power  of  the  party  cross-examining.  In  such  a  case,  if 
the  rule  were  strictly  adhered  to,  a  dilemma  would  occur,  the  effect 
of  Avhich  might  be  to  exclude  the  contradicting  evidence.  The  ad- 
verse party  would  not  be  able  to  go  *into  evidence  of  the  r*09i-| 
contradictory  document  before  he  had,  upon  cross-examina- 
tion, given  an  opportunity  of  explanation  to  the  witness,  and  he 
could  not,  according  to  the  rule,  examine  as  to  the  contents  of  the 
writing  before  he  had  proved  the  contents.  At  all  events,  he  would 
labor  under  a  difficulty  in  securing  the  attendance  of  an  adverse  wit- 
ness until  such  time  as  he  had  established  the  necessary  proof. '^ 

*  It  has  been  suggested,  that  for  the  purpose  of  warranting  the  cross-examina- 
tion of  a  witness  as  to  the  contents  of  a  writing  which  has  in  fact  been  destroyed, 
or  is  in  the  hands  of  the  other  party,  it  is  fit  that  the  party  proposing  to  cross- 
examine  shouUi  be  allowed  to  interpose  evidence  out  of  his  turn  to  prove  the 
fact  of  destruction  or  its  being  in  such  hands  ;  or,  that  if  any  inconvenience 
should  result  from  pursuing  this  course,  the  court  should,  in  the  exercise  of  its 
discretion,  either  admit  the  witness's  statement  in  the  first  instance,  or  defer  the 
cross-examination  until  the  adversary  shall  have  entered  on  his  case.  With  re- 
spect to  the  second  alternative,  it  may  be  observed,  that  to  allow  a  party  to  enter 
upon  secondai'v  evidence,  as  it  were  de  bene  esse,  and  Subject  to  be  established 
or  defeated  by  the  subsequent  proof  or  failure  of  proof,  would  be  going  farther 
than  any  existing  precedent  seems  to  warrant,  and  the  party  might  reasonably 
object  to  admitting  secondary  evidence,  which  may  in  the  result  turn  out  to 
have  been  wholly  inadmissible,  nay,  which  perhaps  his  opponent  might  render 
inadmissible,  if  it  served  his  purpose,  by  afterwards  omitting  to  support  it  by 
legal  evidence.  Although,  in  Graham  w.  Dyster,  2  Stark.  C.  (3  E.  C.  L.  R  )  21, 
Sideways  v.  Dyson,  Ibid.  49,  Lord  Ellenborough  ruled,  that  a  defendant,  having 
given  the  plaintiff  notice  to  produce  writings  in  his  possession,  cannot  cross- 
examine  the  plaintiff's  witnesses  as  to  their  contents  ;  yet,  in  the  latter  case,  he 
observed,  that  though  in  strictness  the  evidence  could  not  be  anticipated,  it  was 
rigorous  to  insist  upon  the  rule,  and  a  close  adherence  to  it  might  be  productive 
of  inconvenience.  And,  in  Calvert.  Administrator,  v.  Flower,  7  C.  &  P.  (32  E. 
C.  L.  K.)  386,  the  defendant,  in  the  course  of  cross-examining  the  plaintiff's 
witness,  called  for  the  intestate's  ledger  under  a  notice  toproduce ;  Lord  Den- 
man,  C.  J.,  said,  that  if  it  was  not  produced,  the  defendant's  counsel  might 
cross-examine  as  to  its  contents.  In  Attorney-General  v.  Bond,  9  C.  &  P.  (38  E. 
C.  L.  R.)  189,  the  defendant's  counsel,  in  order  to  cross-examine  a  witness  for 
the  Crown,  called  a  witness  on  his  siihpa;na  to  produce  an  afBdavit.  And,  in 
Reg  V.  Shellard,  9  C.  &  P.  (38  E.  C.  L.  R.)  277,  in  order  to  cross-examine  a  wit- 
ness for  the  prosecution  as  to  what  he  said  before  the  magistrates,  the  defendant 
called  the  officer  of  the  court  to  prove  that  the  depositions  had  been  mislaid,  and 
the  magistrate's  clerk  to  show  that  they  had  been  taken,  and  to  prove  a  copy. 
In  the  two  latter  cases  it  is  obvious  that  it  is  essential  for  the  simple  purpose  of 
cross-examining  the  witness  ;  and  then  it  would  appear  that  it  may  undoubtedly 
be  done,  the  evidence  interposed  being  evidence  for  the  court  and  not  for  the 


225  CROSS-EXAMINATION    OF    WITNESSES. 

r*99f;-|  *Such  a  cross-examination  would  also  frequently  afford  a 
test  of  credit  where  the  writing  could  not  be  produced,  or 
its  loss  proved  ;  for  if  the  witness  has  in  fact  made  statements  in 
writing  which,  if  produced,  would  impeach  his  credit,  and  either  out 
of  regard  to  his  oath,  or  for  fear  of  consequences,  is  induced  to  ad- 
mit the  fact,  his  answer,  subject  to  the  explanation  which  he  may  be 
able  to  give,  must  produce  the  same  effect. 

The  objections  on  the  score  of  policy  are,  on  the  contrary,  of  a 
limited  nature,  it  being  admitted  on  all  hands  that  the  answers 
given  cannot  be  received  as  any  evidence  of  the  writing  itself  for  the 
purposes  of  the  cause.  It  is  possible  that  the  witness  having  written 
what  Avas  true,  may  not  recollect  what  he  had  written,  or,  to  go  to 
the  greatest  extent,  may,  even  mistakingly,  and  from  defect  of 
memory,  admit  (even  contrary  to  the  truth)  that  he  has  given  a  de- 
scription of  the  transaction  inconsistent  with  his  present  testimony  ; 
but  even  this  would  operate  as  a  test  to  try  his  memory,  and  the 
result  would  show  that  his  recollection  was  imperfect :  a  considera- 
tion of  the  highest  importance  where  the  witness  is  called  to  detail 
conversations  or  the  contents  of  a  written  document ;  a  task  to 
which  few  memories  are  adequate  under  ordinary  circumstances. 

And  instances  may  be  cited  where  evidence  is  admitted  for  one 
purpose  and  object  to  which  it  is  applicable,  although  with  reference 
to  other  purposes  and  objects  to  which  the  evidence  relates  it  is  in- 
r*99fil  ^clmissible  and  wholly  ^inoperative.  Thus,  in  the  ordinary 
case  where  a  witness  is  cross-examined  as  to  oral  declara- 
tions made  by  him  and  connected  with  the  cause,  evidence  is  con- 
stantly offered  to  prove  those  declarations, .  where  he  denies  them, 
not  with  a  view  to  prove  the  truth  of  a  declaration,  but  in  order  to 
impeach  his  credit.  If,  for  instance,  in  an  action  for  goods  sold  and 
delivered,  a  witness  called  to  prove  the  delivery  of  the  goods  were 
to  deny  that  he  said  to  A.  B.  that  the  defendant  in  fact  never  had 
the  goods,  it  would  be  competent  to  the  defendant  to  call  A.  B.  to 
prove  that  the  witness  did  in  fact  make  that  declaration,  not  with  a 
view  to  affect  the  plaintiff  by  making  the  declaration  evidence  of  non- 
delivery (for  it  is  no  evidence  of  the  fact),  but  to  impeach  the  credit 
of  the  witness. 

Here  tlie  question  is  allowed  for   the   purpose   of  impeaching  the 

jury  ;  but  where,  as  in  the  two  first  cases  cited  above,  the  object  is  to  establish 
independent  proof,  it  may  be  questioned  whether  the  proper  course  is  not  to 
postpone  the  cross-examination  on  tiiis  point,  or  to  force  the  party  to  call  the 
witness  as  his  own. 


AS    TO    WRITINGS,     TO    TEST     CREDIT.  226 

testimony  of  the  witness,  although  it  involves  a  fact  of  which  the 
answer  would  be  no  evidence.  If  so,  then,  if  the  very  same  state- 
ment were  in  writing,  why  might  not  the  question  also  be  allowable 
for  the  very  same  limited  purpose,  that  is,  to  impeach  the  witness's 
credit,  although  to  establish  the  truth  of  the  written  statement,  viz., 
that  the  goods  had  not  been  delivered,  it  would  afford  no  evidence 
whatsoever. 

Again,  upon  the  ordinary  examination  of  a  witness  on  the  voire 
dire,  with  a  view  to  show  that  he  is  wholly  incompetent,  he  might 
have  been  examined  as  to  the  contents  of  a  written  document  not  pro- 
duced ;  and  the  reason  is  that  it  is  not  probable  that  the  writing 
which  created  his  incompetency  would  be  in  possession  or  within  the 
knowledge  of  the  adversary :  a  reason  which  would  frequently  apply 
in  full  force  in  the  present  instance.^ 

*To  the  objection  that  to  allow  such  a  cross-examination  r^Q^rr-i 
would  be  to  deviate  from  the  rule  that  the  best  evidence 
ought  to  be  adduced  that  the  case  admits  of,  it  may  be  answered 
that  the  principle  of  the  rule  is  applicable  only  to  evidence  offered 
to  prove  a  material  fact,  and  is  inapplicable  where  the  object  is 
merely  to  try  the  credit  or  ability  of  the  witness.  The  objection 
that  otherwise  only  part  of  a  document  might  be  proved,  seems  to 
admit  of  the  same  answer.  Besides,  if  the  witness  did  recollect  what 
he  had  written,  he  would  be  entitled  to  state  the  whole,  or  at  least 
so  much  as  was  material ;  and  if  he  denied  having  written  to  the 
effect  stated,  he  could  not  be  contradicted  without  producing  the 
document  and  reading  the  whole. 

It  has,  however,  very  recently  been  held  by  the  Court  of  Common 
Pleas,  that  a  witness  cannot  on  cross-examination  be  asked  whether 
he  did  not  write  an  answer  to  a  letter  which  charged  him  with  an 
offence,  unless  that  letter  is  produced  or  its  absence  satisfactorily 
accounted  for,  although  the  sole  object  be  to  discredit  the  witness. *^ 
In  an  earlier  case,  also,  the  Court  of  Queen's  Bench  has  said  that  a 
party  has  no  right  to  cross  examine  a  witness  on  the  contents  of  an 
affidavit  made  by  him,  without  putting  the  original,  or  an  examined 

*  It  is  true,  that  if  the  witness,  upon  examination  on  the  voire  dire,  has  the 
instrument  with  him,  it  must  be  produced  ;  for  the  reason  for  dispensing  with 
its  actual  production,  viz.,  the  difficulty  of  procuring  it,  has  ceased :  Butler  v. 
Carver,  2  Stark.  C.  (3  E.  C.  L.  R.)  433.  But  where  a  witness  is  cross-examined 
in  relation  to  a  writing  to  try  his  credit,  the  reasons  for  permitting  such  cross- 
examination  do  not  cease,  although  the  party  cross-examining  be  in  possession 
of  that  instrument. 

f  Macdonnell  v.  Evans,  21  L.  J.,  C.  P.  141. 
14 


227  CROSS-EXAMINATION     OF    WITNESSES. 

or  admitted  copy  of  it,  into  his  hands  ;^  and,  of  course,  where  an 
r*99fti  '"^ffiJ^^^'it  *is  produced  with  a  view  to  cross-examine  the  wit- 
^  ""  ness  who  made  it,  and  it  appears  to  be  the  joint  affidavit  of 
the  witness  and  another,  and  to  relate  to  other  persons  besides  the 
party  adducing  it,  he  can  use  so  much  of  it  only  as  relates  to  himself 
and  was  made  by  the  witness. ^^ 

A  party  having  produced  a  document  in  cross-examination,  is  not 
bound  to  read  it  before  he  comes  to  his  own  case,  although  he  has 
shown  it  to  the  witness  and  cross-examined  him  upon  it  ;*"  and  if  a 
party  on  cross-examination  obtains  proof  of  a  document,  the  adversary, 
it  has  been  said,  has  no  right  to  see  the  paper  for  the  purpose  of  re- 
examining the  witness  as  to  the  paper  being  in  the  handwriting  of 
the  party  whose  handwriting  is  sworn  to.'  If  the  cross-examining 
counsel  merely  produce  a  paper  and  ask  the  witness  whether  it  is  in 
his  handwriting,  that  does  not  entitle  the  other  side  to  see  it,  but  if 
he  proceed  to  found  any  question  on  the  document,  the  opposite 
counsel  has  a  right  to  see  it  ;•'  and  if,  upon  a  writing  being  put  into 
the  witness's  hand  for  the  purpose  of  cross-examination,  the  cross- 
examination  wholly  fails,  the  adverse  counsel  is  not  entitled  to  look 
at  the  paper.''     And  it  has  been  held,  that  where  a  witness  has  been 

8  Bastard  v.  Smiih,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  213,  in  which  case  the  origi- 
nal was  produced,  and  the  expense  of  carrying  it  down  was  allowed  by  the 
court,  on  the  ground,  it  would  seem,  that  Tindal,  C.  J.,  had  held  that  the  origi- 
nal must  be  produced.  But  in  Highfield  v.  Peake,  M.  &  M.  (22  E.  C.  L.  R.) 
109,  which  was  an  issue  out  of  Chancery,  an  examined  office-copy,  and  in  Davies 
V.  Dai'tes,  9  Car.  &  P.  (38  E.  C.  L.  R.)  252,  an  office  copy,  admitted  to  be  a  copy 
under  a  judge's  order,  of  an  affidavit  made  by  a  witness  in  the  cause,  were  al- 
lowed to  be  used  for  the  purpose  of  cross-examination  and  contradiction.  So  an 
examined  copy  of  an  answer  of  the  witness  in  Chancery  was  allowed  to  be  used 
in  Eu-er  v.  Ambrose,  4  B.  &  C.  (10  E.  C.  L.  R.)  25. 

BK  Attorney- General  v.  Bond,  9  C.  &  P.  (3S  E.  C.  L.  R.)  189. 

!>  Holland  v.  Reeves,  7  C.  &  P.  (32  E.  C.  L.  R.)  36,  cor.  Alderson,  B. 

»  By  Bosanciuct,  J.,  in  Russell  v.  Rider,  G  C.  &  P.  (25  E.  C.  L.  R.)  416.  But 
it  is  extremely  diiiicult  to  understand  upon  what  ground  this  can  be  sustained, 
and  Holland  v.  Reeves,  7  C.  &  P.  (32  E.  C.  L.  R.)  36,  is  opposed  to  it.  In  Col- 
lier V.  Nokes,  2  Car.  &  K.  (61  E.  C.  L.  R.)  1012,  it  was  said  that  Parke,  B.,  had 
rulr  1  in  the  same  way  as  Bosanquet,  J. ;  and  Wilde,  C.  J.,  in  deference  to  that 
Ofiitiion,  ac([uiesced  in  the  same  course,  but  expressed  his  own  opinion  that  the 
oitpositc  counsel  had  the  right  to  see  the  document.  If  the  proof  failed,  he  cer- 
tainly would  liiivc  no  right  to  see  the  paper,  and  perhaps  it  was  confounded  with 
that  case. 

J  Cope  v.  Thames  Haven  Dock  Company,  2  C.  &  K.  (61  E.  C.  L.  R.)  757. 

"  7.'.  V.  Duncombe,  8  C.  k  P.  (34  E.  C.  L.  R.)  369. 


AS     TO     DEPOSITIONS    BEFORE     MAGISTRATES.  229 

examined   as  to    entries   in  a  *book,  the   adversary  cannot    r^^Qo-i 
cross-examine  as  to  other  entries  wliich  have  not  been  used, 
without  putting  them  in  as  his  evidence.^ 

With  respect  to  the  cross-examination  of  witnesses  in  criminal 
cases,  as  to  matters  occurring  before  the  magistrates,  the  following 
rules  of  practice  have  been  laid  down  by  the  judges™  since  the  passing 
of  the  Prisoners'  Counsel  Bill  : — 

1.  That  where  a  witness  for  the  Crown  has  made  a  deposition 
before  a  magistrate,  he  cannot,  upon  his  cross-examination  by  the 
prisoner's  counsel,  be  asked  whether  he  did  or  did  not  in  his  depo- 
sition make  such  or  such  a  statement,  until  the  deposition  itself  has 
been  read,  in  order  to  manifest  whether  such  statement  is  or  is  not 
contained  therein,  and  that  such  deposition  must  be  read  as  part  of 
the  evidence  of  the  cross-examining  counsel. 

2.  That  after  such  deposition  has  been  read,  the  prisoner's  counsel 
may  proceed  in  his  cross-examination  of  the  witness  as  to  any  sup- 
posed contradiction  or  variance  between  the  testimony  of  the  witness 
in  court,  and  his  former  deposition,  after  which  the  counsel  for  the 
prosecution  may  re-examine  the  witness,  and,  after  the  prisoner's 
counsel  has  addressed  the  jury,  will  be  entitled  to  the  reply,  and  in 
case  the  counsel  for  the  prisoner  comments  upon  any  supposed  vari- 
ance or  contradiction  without  having  read  the  deposition,  the  court 
may  direct  it  to  be  read,  and  the  counsel  for  the  prosecution  will  be 
entitled  to  reply  upon  it. 

3.  That  the  witness  cannot  in  cross-examination  be  compelled  to 
answer  whether  he  did  or  did  not  make  such  a  ^statement  r*9qn-| 
before  the  magistrate  until  after  his  deposition  has  been  read, 

and  it  appears  that  it  contains  no  mention  of  such  statement.  In 
that  event  the  counsel  for  the  prisoner  may  proceed  with  his  cross- 
examination,  and  if  the  witness  admits  such  a  statement  to  have  been 
made,  he  may  comment  upon  such  omission,  or  upon  the  effect  of  it 
upon  the  other  part  of  his  testimony  ;  or  if  the  witness  denies  that 
he  made  such  a  statement,  the  counsel  for  the  prisoner  may  then,  if 
such  statement  be  material  to  the  matter  in   issue,  call  witnesses  to 

•  By  Gurney,  B.,  Gregory  v.  Tavernon,  6  C.  &  P.  (25  E.  C.  L.  R.)  280.  But, 
semble,  he  might  use  them  to  refresh  the  memory  of  the  witness ;  a  writing  may 
(as  has  been  seen)  be  used  for  this  purpose  without  making  it  evidence. 

™  These  rules  have  been  laid  down  by  the  judges  for  the  regulation  of  counsel, 
but  it  is  discretionary  with  the  judge  whether  he  will  put  questions  to  the  wit- 
ness as  to  any  discrepancy  between  the  statement  of  the  witness  on  the  trial  and 
that  contained  in  his  depositions,  without  having  it  first  read  :  Eex  v.  Edwards, 
8  C.  &  P.  (34  E.  C.  L.  R.)  26. 


230  RE-EXAMINATION     OF     WITNESSES. 

prove  that  lie  had  made  such  statement.  But  in  either  event  the 
reading  of  the  deposition  is  the  prisoner's  evidence,  and  the  counsel 
for  the  prosecution  will  be  entitled  to  reply. 

The  witness  therefore  cannot,  on  cross-examination,  be  asked  any 
question  as  to  his  statement  before  the  magistrates  without  putting 
in  his  deposition ;  and  indeed,  in  cross-examining  a  witness  as  to  any 
other  statement  he  may  have  made,  it  has  been  ruled  that  the  ques- 
tions put  to  him  should  expressly  exclude  the  occasion  of  his  exami- 
nation before  the  magistrates  or  coroner."  If,  however,  from  any 
accident,  the  deposition  of  the  witness  has  not  been  duly  taken  or 
returned,  this  rule  of  course  ceases  to  apply :"  but  the  mere  cir- 
cumstance of  the  magistrate  having  omitted  to  set  forth  the  cross- 
r*0'^n  examination  before  *him  will  not  exclude  the  operation  of 
the  rule ;  the  deposition  should  be  read  to  evidence  the  fact 
of  the  statement  alluded  to  not  being  contained  in  it.^ 

A  witness  may  be  re-examined  by  the  party  who  called  him,  upon 
all  the  topics  on  which  he  has  been  cross-examined  :''  this  gives  an 

■^  Per  Patteson,  J.,  in  Rex  v.  Holden,  8  C.  &  P.  (34  E.  C.  L.  R.)  609 ;  and 
Eex  V.  Shellard,  9  C.  &  P.  (38  E.  C.  L.  R.)  280;  but  Rolfe,  B.,  has  dissented 
from  this  ruling  :  IIarris''s  case,  Liv.  Sum.  Ass.  1845,  Roscoe's  Crim.  Ev.,  3d  ed. 
237. 

"  Eex  V.  Griffiths,  9  C.  &  P.  (38  E.  C.  L.  R.)  746.  And  where  minutes  of  the 
examination  of  the  witnesses  before  the  magistrates  were  made,  and  then  a  clerk 
by  himself  proceeded  to  put  them  in  form,  and  in  doing  so  put  questions  to  the 
witnesses,  the  answers  to  which  he  embodied  in  the  depositions,  it  was  held  by 
the  Court  of  Criminal  Appeal  that  a  witness  might  be  asked  whether  he  did  not 
make  a  particular  statement  to  the  clerk,  without  putting  in  his  deposition, 
though  that  statement  was  inserted  in  his  deposition,  which  was  afterwards 
read  over  to  him,  after  he  had  been  re-sworn,  in  the  presence  of  the  magistrate 
and  the  prisoner,  who  had  full  power  to  cross-examine  him:  Reg.  v.  Christo- 
pher, 2  C.  &  K.  (61  E.  C.  L.  R.)  994. 

p  Rex  V.  Tmjlor,  8  C.  &  P.  (34  E.  C.  L.  R.)  726.  The  absence  of  such  state- 
ment in  the  deposition  will  not,  however,  preclude  the  prisoner  from  asking  the 
question  :  Reg.  v.  Curtis,  2  Car.  &  K.  (61  E.  C.  L.  R.)  763. 

•J  In  the  cases  mentioned,  ante,  p.  194,  where  a  witness,  whose  name  is  on  the 
back  of  the  indictment,  not  having  been  called  for  the  prosecution,  may  be 
called  by  the  judge  and  cross-examined  by  the  prisoner,  the  counsel  for  the 
prosecution  cannot  examine  him  on  any  point  which  did  not  arise  on  the  cross- 
examination,  and  perhaps  cannot  examine  him  at  all :  R.  v.  Bezley,  4  C.  <&  P. 
(19  E.  C.  L.  R.)  220;  R.  v.  Harris,  7  C.  &  P.  (32  E.  C.  L.  R.)  581.  This  is  a 
reason  why  the  power,  there  alluded  to,  should  be  very  rarely  exercised  by  the 
judge;  and  why  the  rule,  said  to  be  laid  down  ])y  the  judges,  that  the  prisoner 
should  call  sucli  a  witness  as  his  own,  [Reg.  v.  Woodhead,  2  Car.  &  K.  (61  E. 
C.  L.  R. )  520,)  should  ]>e  adhered  to.  It  has,  however,  been  held  that  the  judge 
may  direct  the  witness's  deposition  to  be  read  for  the  purpose  of  contradicting 
his  statement  at  the  trial :  Oldroi/d^s  case,  Russ.  &  Ry.  88. 


AS    TO     CONVERSATIONS     AND    WRITINGS.  231 

opportunity  of  explaining  any  new  facts  wliicli  have  come  out  upon 
cross-examination  ;•■  but  as  tlic  object  of  re-examining  a  witness  is  to 
explain  the  facts  stated  by  the  witness  upon  cross-examination,  the 
re-examination  is  of  coui'se  to  be  confined  to  the  subject-matter  of 
cross-examination.^ 

Where  the  witness  has  been  cross-examined  as  to  declarations 
made  by  him,  a  counsel  has  a  right,  on  re-examination,  to  ask  all 
questions  which  may  be  proper  to  draw  forth  an  explanation  of  the 
sense  and  meaning  of  the  expressions  used  by  the  witness  on  cross- 
examination,  if  they  be  in  themselves  doubtful,  and  also  of  the 
motive  by  which  the  witness  was  induced  to  use  those  expressions  ; 
but  he  has  no  right  to  go  farther,  and  to  introduce  matter  new  in 
itself,  and  not  suited  to  the  purpose  of  explaining  either  the  expres- 
sions or  the  motives  of  the  witness.'" 

*It  was  formerly  held  that  where  a  witness  has  been  cross-    ^ , 

.         .  .  r*2321 

examined  as  to   a  conversation  with  the  adverse  party  in  the    *-  "^     -' 

"■  The  Queen^s  case^  2  B.  &  B.  (6  E.  C.  L.  R.)  297.  Thus,  upon  an  issue  whether 
a  cargo  which  had  been  loaded  on  deck  was  improperly  loaded,  the  plaintiiF's  wit- 
nesses, called  to  prove  that  loading  part  of  the  cargo  on  deck  was  dangerous, 
stated  in  cross-examination  that  it  was  usual  on  spring  and  fall  voyages  for  ships 
in  the  particular  trade  to  carry  deck  cargoes.  On  re-examination,  they  were  asked 
whether  deck  cargoes  shipped  on  fall  voyages  were  at  the  risk  of  the  ship-owner 
or  the  merchant;  an  objection  to  this  question  was  held  to  have  been  properly 
overruled:  Gould  and  others  v.  Oliver,  2  M.  &  G.  (40  E.  C.  L.  R.)  208.  So 
where,  on  the  trial  of  J.,  for  discharging  loaded  arms  at  B.,  B.  was  cross-exam- 
ined, with  a  view  to  discredit  his  evidence,  as  to  whether  he  had  not  used  violent 
language  towards  his  father  ;  having  admitted  it,  he  was  allowed  to  be  asked  on 
re-examination  how  his  father  had  acted  towards  him  before  he  used  that  lan- 
guage :  R.  V.  St.  George,  9  C.  &  P.  (38  E.  C.  L.  R.)  483.  And  on  the  trial  of 
an  action  for  a  libel,  imputing  fraud  to  the  plaintiff  in  betting  against  his  own 
horse  and  then  withdrawing  him,  a  witness  for  the  plaintiff  having  stated  on 
crosvS-examination  that,  by  the  rules  of  the  Jockey  Club,  the  owner  of  a  horse 
might  bet  against  his  own  horse  and  then  withdraw  him,  the  witness  was  allowed 
to  be  asked  on  re-examination  whether  he  did  not  consider  such  conduct  to  be 
dishonorable  :  GrtviUe  v.  Lamb,  5  Q.  ]).  (48  E.  C.  L.  R.)  731.  Thus,  even  if  the 
facts  elicited  on  cross-examination  are  not  strictly  evidence,  but  are  of  a  nature 
to  prejudice  the  plaintiff,  he  may  re-examine  upon  them,  unless  the  defendant 
applies  to  strike  them  out:  Blewett  v.  Tregoning,  3  Ad.  &  E.  (30  E.  C.  L.  R.) 
554. 

^  A  witness  may  be  re-examined  by  the  party  calling  him  even  after  a  cross- 
examination,  as  well  for  the  introduction  of  matter  new  in  itself  as  for  the 
purpose  of  explaining  the  expressions  or  the  motives  of  the  witness,  when 
the  omission  to  examine  as  to  such  new  matter,  when  first  called,  arose  from 
inadvertence  or  other  cause  to  be  approved  by  the  court:  Clarke  v.  Voree,  18 
Wend.  193.  G. 


232  RE-EXAMINATION     OF     WITNESSES. 

suit,  whether  criminal  or  civil,  the  counsel  for  that  party  has  a  right 
to  lay  before  the  court  the  whole  which  was  said  by  his  client  in  the 
same  conversation  ;  not  only  so  much  as  may  explain  or  qualify  the 
matter  introduced  by  the  previous  examination,  but  even  matter  not 
properly  connected  with  the  part  introduced  upon  the  previous  ex- 
amination, provided  only  that  it  relate  to  the  subject-matter  of  the 
suit;  because  it  would  not  be  just  to  take  part  of  a  conversation  as 
evidence  against  a  party,  without  giving  him  at  the  same  time  the 
benefit  of  the  entire  residue  of  what  he  said  on  the  same  occasion.*  ^ 
But  in  the  Queen  s  case  eleven  of  the  judges  were  of  opinion  that  the 
conversation  of  a  witness  with  a  third  person  stood  upon  a  different 
^  ^^  ^  footinar,  and  was  distinguishable  from  the  case  of  *a  conver- 
■-  -■  sation  with  a  party,  on  the  following  grounds,  viz, :  "  The 
conversation  of  a  witness  with  a  third  person  is  not  in  itself  evidence 
in  the  suit  against  any  party  in  the  suit.  It  becomes  evidence  only 
as  it  may  aifect  the  character  and  credit  of  the  witness,  which  may 
be  affected  by  his  antecedent  declarations,  and  by  the  motive  under 
which  he  made  them  ;  but  when  once  all  which  had  constituted  the 
motive  and  inducement,  and  all  which  may  show  the  meaning  of  the 
words  and  declarations,  has  been  laid  before  the  court,  the  court  be- 
comes possessed  of  all  which  can  affect  the  character  or  credit  of  the 
witness,  and  all  beyond  this  is  irrelevant  and  incompetent."' 

'  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  298. 

'  Upon  these  grounds,  eight  of  the  judges  (Best,  J.,dissentiente)  were  of  opin- 
ion that  if,  on  the  trial  of  an  action  or  indictment,  a  witness  examined  on  be- 
half of  the  plaintiflp  or  prosecutor,  upon  cross-examination  by  the  defendant's 
counsel,  states,  that  at  a  time  specified  he  told  A.  that  he  was  one  of  the  wit- 
nesses to  be  examined  against  the  defendant,  and  being  re-examined  by  the 
plaintiiF's  or  prosecutor's  counsel,  states  what  induced  him  to  mention  this  to 
A.,  the  plaintiff  or  prosecutor's  counsel  cannot  further  re-examine  the  witness 
as  to  such  conversation,  even  so  far  only  as  it  relates  to  his  being  one  of  the 
witnesses. 

Abbott,  C.  .J.,  in  delivering  the  opinion  of  the  judges,  observed:  "The  ques- 
tion, as  proposed  by  the  House,  contains  these  words  ;  '  and  being  re-examined, 
had  stated  what  induced  him  to  mention  to  A.  what  he  had  so  told  him  ;'  by 

'  Where  a  witness  is  introduced  by  a  party  and  is  interrogated  as  to  a  particu- 
lar fact  and  the  opposite  party  on  cross-examination  asks  him  generally  if  he 
ever  communicated  that  fact  to  any  one  and  to  whom,  and  he  answers  that  he 
communicated  it  to  the  party  calling  him,  this  does  not  entitle  the  party  calling 
him,  to  pursue  the  inquiry  as  to  his  own  reply,  and  other  conversation  with  the 
witness  at  the  time  of  the  communication.  Otherwise,  if  the  witness  be  asked 
on  cross-examination  specifically  wli(;thcr  he  made  the  communication  to  the  party 
calling  him  :    Winckeli  v.  Lalham,  0  Cow.  082.  G. 


AS    TO    CONVERSATIONS     AND     WRITINGS.  234 

*In  the  late  case  of  Prince  v.  Samo''  the  Court  of  Queen's  r*.9Q4-| 
Bench,  after  much  deliberation,  overruled  tliis  distinction, 
and  laid  down  a  rule,  founded  in  good  policy,  that  whether  the  wit- 
ness be  cross-examined  as  to  a  conversation  with  a  party  to  the  suit 
or  with  a  third  person,  the  re-examination  must,  in  the  former  case, 
as  well  as  the  latter,  be  confined  to  matters  connected  with  the  evi- 
dence given  on  cross-examination,  as  tending  to  show  its  true  nature 
and  bearinof.  The  action  in  that  case  was  for  a  malicious  arrest  for 
money  alleged  by  the  plaintiff  to  have  been  given  to  him.  The 
plaintiff  called  as  a  witness  his  attorney,  who  having  been  present 
when  the  plaintiff  was  examined  as  a  witness  on  an  indictment  for 
perjury,  stated,    on  cross-examination,  that  the  plaintiff  on  the   trial 

which  I  understand  that  the  witness  had  fully  explained  his  whole  motive  and 
inducement  to  inform  A.  that  he  was  to  be  one  of  the  witnesses  :  and  so  under- 
standing the  matter,  and  there  being  no  amhigaity  in  the  words,  '  I  am  to  be  one 
of  the  witnesses,'  I  think  there  is  no  distinction  between  the  previous  and  subse- 
quent parts  of  the  conversation,  and  I  think  myself  bound  to  answer  your  Lord- 
ships' question  in  the  negative." 

His  Lordship  then  gave  the  reasons  of  the  eight  judges  for  distinguishing  be- 
tween a  conversation  between  the  witness  and  a  party,  and  one  between  the  wit. 
ness  and  a  third  person,  to  the  effect  above  stated. 

Best,  J.,  was  of  opinion  that  the  rule  which  was  acknowledged  to  have  been 
settled  as  to  conversations  of  a  party  to  the  suit,  applied  with  equal  reason  and 
force  to  the  statements  and  conversations  of  a  witness  ;  and  held,  that  if  one 
part  of  the  conversation  of  a  witness  has  been  drawn  from  him  by  cross-ex- 
amination, with  a  view  of  disparaging  his  testimony,  the  whole  of  what  passed 
in  that  conversation  ought  to  be  admitted  on  re-examination  ;  and  this  is  justly 
due  to  the  character  of  the  witness,  who  is  entitled,  in  vindication  of  his 
character,  to  have  the  entire  conversation  fairly  and  fully  detailed  in  evidence ; 
it  was  due  to  him  also,  as  a  security  against  proceedings  which  might  other- 
wise be  instituted  against  him  on  statements  partially  extracted  on  cross-exami- 
nation. 

The  Lord  Chancellor  and  Lord  Redesdale  also  differed  from  the  majority  of 
the  judges.  As  the  learned  judges  were  pleased  to  guard  their  opinion  by  stat- 
ing that  they  understood  the  question  not  to  assume  that  the  witness  had  fully 
explained  his  whole  motive  and  inducement  to  inform  A.,  the  decision  in  the 
particular  instance  thus  presented  to  them  does  not  go  the  length  of  excluding 
the  cotemporaneous  statement  made  by  the  witness  where  it  would  be  the  best 
exposition  of  his  real  motives.  And  where  a  witness  was  asked,  on  cross-exami- 
nation, as  to  part  of  a  convei'sation  between  the  plaintiff  and  defendant  relative 
to  the  subject-matter  of  the  action,  of  which  conversation  the  plaintiff  had  in- 
formed the  witness  ;  it  was  held,  that  on  re-examination  he  might  properly  be 
asked  to  relate  the  whole  of  that  conversation  :  Ghjnn  v.  Houston,  2  M.  &  G. 
(40  E.  C.  L.  R.)  337. 

"  7  A.  &  E.  (34  E.  C.  L.  R.)  627. 


234  RE-EXAMINATION     OF    "WITNESSES. 

of  the  indictment  admitted  that  he  had  repeatedly  been  insolvent 
and  remanded  by  the  court.  It  was  proposed,  on  re-examination,  to 
inquire  whether  the  plaintiff  had  not  also  upon  the  same  occasion 
stated  the  circumstances  out  of  which  the  arrest  had  arisen,  and 
what  that  statement  was.  Lord  Denman,  on  the  objection  being 
P^Qor-i  taken,  rejected  the  evidence,  *on  the  ground  "that  the  wit- 
ness might  be  asked  as  to  every  thing  said  by  the  plaintiff 
on  the  trial  of  the  indictment  that  could  in  any  way  qualify  or  ex- 
plain the  statement  to  which  he  had  been  cross-examined,  but  that 
he  had  no  right  to  add  any  independent  history  of  transactions 
wholly  unconnected  with  it."  On  a  motion  for  a  new  trial  the  court 
held  that  the  same  rule  which  applied  to  statements  made  by  a  wit- 
ness applied  also  to  those  made  by  a  party ;  and,  after  observing 
that  the  opinion  of  Lord  Tenterden  was  extrajudicial,  and  not  in 
terms  adopted  by  Lord  Eldon  and  the  judges,  who  concurred  in  the 
answer  to  the  proposed  question,  and  was  expressly  denied  by  Lords 
Redesdale  and  Wynford,  added :  "  In  our  opinion  the  reason  of  the 
thing  would  rather  go  to  exclude  the  statements  of  a  party  making 
declarations  which  cannot  be  disinterested.  Nothing  would  be  more 
easy  than  to  find  or  imagine  examples  of  the  extreme  injustice  that 
might  result  from  allowing  such  statements  to  be  received  ;  but  none 
can  be  stronger  than  the  actual  case.  Because  the  plaintiff  was 
shown  to  have  said  that  he  was  insolvent,  he  would  have  been  al- 
lowed, without  any  reference  to  his  own  insolvency,  to  prove  by  his 
discourse  at  the  same  period  every  averment  in  his  declaration,  with 
every  circumstance  likely  to  excite  prejudice  and  odium  against  the 
defendant;  and  if  this  were  evidence,  the  jury  would  be  bound  to 
consider  and  give  full  effect  to  it,  and  thus  award  large  damages  for 
an  injury  of  which  no  particle  of  proof  could  be  given  excepting  the 
plaintiff's  own  assertion."'' 

r*9Qfi'         *-^  contrary  rule  would  be  supported  by  a  specious,  but 

in  this  and  in  several  other  instances  a  fallacious,  principle  ; 

for  whilst  it   may,  at  first  view,  seem  to    be  conducive  to  enlarged 

views  of  policy  and  convenience  to  admit  the  whole  of  a  particular 

"  In  Slim/e  v.  Buchanan,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  598,  a  defendant  pro- 
duced, under  a  notice  so  to  do,  a  book  containing  copies  of  letters  written  by 
him  to  his  partners,  and  some  of  these  having  been  read  on  the  part  of  the 
plaintifT,  the  defendant  chiimed  a  right  to  read  to  the  jury  other  letters  upon  the 
same  suliject  copied  in  the  same  book,  but  not  referred  to  in  those  read  by  the 
plaintifl":  it  was,  however,  held,  that  he  had  no  right  to  do  this  ;  and  the  case  of 
Prince  v.  Samo  was  cited  and  confirmed  by  the  court.  And  see  Whitfield  v. 
Aland,  2  Car.  &  K.  (61  E.  C.  L.  R.)  1015. 


AS    TO    CONVERSATIONS    AND    WRITINGS.  236 

conversation  where  part  of  it  is  given  in  evidence,  and  so  to  afford 
to  the  jury  the  most  ample  means  for  attaining  to  the  truth,  yet 
here  the  reverse  is  true ;  for  were  this  to  he  allowed,  parties  appre- 
hensive of  the  unjust  consequences  so  forcibly  represented  in  the 
foregoing  judgment,  would  frequently  be  deterred  from  giving  any 
such  admission  or  statement  by  the  adversary  in  evidence  ;  and  thus 
the  means  of  information  afforded  to  the  jury  would  be  narrowed 
rather  than  enlarged  by  the  more  extensive  rule. 

Where  a  witness,  on  cross-examination,  varies  from  the  statement 
made  on  his  examination  in  chief,  the  party  calling  him  (it  has  been 
held)  may,  on  re-examination,  inquire  into  facts  to  show  that  the  wit- 
ness had  been  induced  to  betray  that  party. ^ 

It  has  already  been  seen  that  a  witness  cannot  obtrude  evidence  on 
cross-examination  which  he  could  not  have  given  in  chief;  but  if 
counsel  voluntarily  cross-examine  as  to  inadmissible  matter,  the  ad- 
verse counsel  is  entitled  to  re-examine  upon  it.^ 

It  seems  that  the  court  will,  after  a  case  is  closed,  allow  a  witness 
to  be  called  back,  or  receive  fresh  evidence,  to  get  rid  of  objections 
which  are  beside  the  justice  of  the  case,  and  little  more  than  mere 
form,  but  not  to  get  rid  of  *any  difficulty  on  the  merits,  r^nqy-i 
Where  the  question  was  as  to  the  petitioning  creditor's  debt 
on  a  bill  of  which  the  bankrupt  was  the  drawer,  and  no  proof  of  any 
default  by  the  acceptor  had  been  shown,  the  court  allowed  a  witness 
to  be  called,  after  the  case  had  been  closed,  to  prove  the  dishonor  and 
notice  to  the  bankrupt.'' 

'"  Dunn  V.  Aslett,  2  M.  &  Rob.  122,  ante,  p.  168.  But  where  a  witness  for 
the  plaintiff,  not  varying  from  his  examination  in  chief,  stated,  on  cross-examina- 
tion by  the  defendant,  important  facts  for  the  latter,  by  whom  also  he  had  been 
subpoenaed,  the  plaintiff  was  not  allowed,  on  re-examination,  to  ask  him  whether 
he  had  not  given  a  different  account  to  the  plaintiff's  attorney  :  Winter  v.  Butt, 
2  M.  &  Rob.  357  ;  and  see  post,  as  to  the  right  of  a  party  to  discredit  his  own 
witness. 

^  Blewett  V.  Tregoning,  3  Ad.  &  E.  (30  E.  C.  L.  R.)  554 ;  5  Nev.  &  M.  (36  E. 
C.  L.  R.)  308.     And  see  Greville  v.  Lamh,  5  Q.  B.  (48  E.  C.  L.  R.)  731. 

y  Giles  v.  Powell,  2  Car.  &  P.  (12  E.  C.  L.  R.)  259 ;  s.  p.,  Walls  v.  Atcheson, 
Ibid.  268  ;  and  see  2  Phil.  Evid.  409,  9th  edit. ;  Broum  v.  Giles,  1  C.  &  P.  (12 
E.  C.  L.  R.)  118  ;  s.  p.,  R.  V.  Watson,  6  C.  &  P.  (25  E.  C.  L.  R.)  653.  But 
where  the  question  was,  which  of  two  sisters  had  taken  the  plaintiff's  house, 
and  his  witness,  on  his  examination  in  chief,  had  said  it  was  E.  D.,  but  the 
defendant's  witnesses  gave  evidence  that  it  was  his  sister,  Park,  J.,  would  not 
allow  the  first  witness  to  be  recalled,  in  order,  now  that  he  had  seen  E.  D.  in 
court,  that  he  might  speak  more  confidently  as  to  her  identity,  observing  that  if 
he  did  so  he  must  allow  all  the  plaintiff's  witnesses  to  be  examined  over  again  : 
Roey.  Day,  7  C.  &  P.  (32  E.  C.  L.  R.)  705. 


237        REBUTTING    THE    TESTIMONY    OF     WITNESSES. 


IV.    The  mode  of  rebutting  the  testimony  of  witnesses. 

The  credit  of  a  witness  may  be  impeached  either  by  cross-exami- 
nation, subject  to  the  rules  already  mentioned,  or  by  general  evi- 
dence affecting  his  credit,  or  by  evidence  that  he  has  before  done  or 
said  that  vs-hich  is  inconsistent  with  his  evidence  on  the  trial ;  or, 
lastly,  by  contrary  evidence  as  to  the  facts  themselves.^ 

It  is  perfectly  well  settled  that  the  credit  of  a  witness  can  be  im- 
peached by  general  evidence  only,  and  not  by  evidence  as  to  par- 
ticular facts  not  relevant  to  the  issue  ;^  for  this  would  cause  the  in- 
quiry, Avhich  ought  to  be  simple  and  confined  to  the  matters  in  issue, 
to  branch  out  into  an  indefinite  number  of  issues.  The  characters, 
not  only  of  the  witness  in  the  principal  cause,  but  of  every  one  of 
the  impeaching  collateral  witnesses,  might  be  impeached  by  separate 
charges,  and  loaded  with  such  an  accumulated  burthen  of  collateral 
proof,  that  the  administration  of  justice  Avould  become  impracticable. 
Besides  this,  no  man  could  come  prepared  to  defend  himself  against 
r*2S8"I  ^^^^S^'^  *  which  might  thus  be  brought  against  him,  without 
previous  notice :  and  though  every  man  may  be  supposed  to 
be  capable  of  defending  his  general  character,  he  cannot  be  prepared 
to  defend  himself  against  particular  charges  of  which  he  has  had  no 
previous  notice.*"  Questions  put  to  a  witness  himself  upon  cross- 
examination  are  not,  it  may  be  observed,  open  to  this  objection,  since 
his  answer  is  conclusive  as  to  all  collateral  matters.  The  proper 
question  to  be  put  to  a  witness  for  the  purpose  of  impeaching  the 
general  character  of  another  witness  is,  whether  he  could  believe 
him  upon  his  oath  ?     When  general  evidence  of  this  nature  has  been 

'  See  Vol.  II.,  tit.  Character. 

"  R.  V.  Watson,  2  Stark.  C.  (3  E.  C.  L.  R.)  151 ;  32  How.  St.  Tr.  458  ;  Gur- 
ney's  report  of  same  case,  vol.  ii.  p.  288  ;  Lmjer^s  case,  16  How.  St.  Tr.  285  ; 
Rookwood' s  case,  13  How.  St.  Tr.  210  ;  B.  N.  P.  269  ;  see  also  Sharp  v.  Scoging, 
Holt's  C.  541 ;  De  la  Matte's  case,  21  How.  St.  Tr.  811  ;  Mawson  v.  Hartsink,  4 
Esp.  C.  102. 

^  A  party  who  has  cross-examined  a  witness  may  impeach  him  vinless  he  has 
introduced  new  matter  in  the  cross-examination  :  Peoples.  Moore,  15  Wend.  419. 
If  a  party  cross-examining  a  witness  draws  out  facts  material  to  the  issue,  other 
than  those  elicited  by  the  party  callin<f  him,  which  are  not  satisfactory,  he  may 
contradict  or  discredit  them,  by  any  legal  proof:  Lewis  v.  Ilodgdon,  5  Shep. 
207. 


REBUTTING    THE    TESTIMONY    OF    WITNESSES.         238 

given   to  impeach  the  credit   of  a  Avitness,  the  opposite   party  may 
cross-examine  as  to  the  grounds  upon  which  that  belief  is  founded."^ 

"  Mawson  v.  Ilartsink,  4  Esp.  102  ;  Sharp  v.  Scoging,  Holt  541.  Where  a 
party  states  that  he  would  not  believe  a  witness  on  his  oath,  it  is  no  objection 
that  he  has  never  heard  him  examined  on  his  o.ath,  if  he  have,  from  previous 
knowledge  of  his  character,  reasonable  ground  of  belief  that  his  word  cannot  be 
trusted  on  oath  :  R.  v.  Bispham,  4  C.  &  P.  (19  E.  C.  L.  R.)  392. 

^  "A  witness  called  to  impeach  or  support  the  general  character  (reputation) 
of  another,"  says  Judge  Swift,  "  is  not  to  speak  of  his  private  opinion  or  of  par- 
ticular facts  in  his  own  knowledge  ;  but  he  must  speak  of  the  common  reputa- 
tion among  his  neighbors  and  acquaintances.  The  only  proper  questions  to  be 
put  to  him,  are — whether  he  knows  the  general  character  (reputation)  of  the 
witness  intended  to  be  impeached,  in  point  of  truth,  among  his  neighbors  ;  and 
what  that  character  (reputation)  is?  AVhether  good  or  bad?  The  witness  may 
be  inquired  of  as  to  the  means  and  opportunity  he  has  of  knowing  the  character 
(reputation)  of  the  witness  impeached  ;  as  how  long  he  has  known  him  ;  how  near 
he  lives  to  him;  and  whether  his  character  has  been  a  subject  of  general  con- 
versation ;  but  his  testimony  must  be  founded  on  the  common  repute  and  un- 
derstanding of  his  acquaintance  as  to  truth,  and  not  as  to  honesty,  &c. :"  Swift's 
Evidence  143.  See  Kimmel  v.  Kimmel,  3  S.  &  R.  336  ;  Wike  v.  Lightner,  11  S. 
&  R.  198.  The  credit  of  a  witness  may  be  impeached  by  showing  that  he  was 
intoxicated  at  the  time  the  transaction  happened  about  which  he  testifies  :  Tuttle 
V.  Russell,  2  Day  201  ;  Swift's  Evid.  144.  It  has  been  decided  in.North  Caro- 
lina [Tennessee]  and  Kentucky,  that  a  party  may  impeach  the  general  moral 
character  of  his  adversary's  witness,  and  is  not  confined  to  the  question  of  his 
reputation  for  veracity :  State  v.  Stallings  et  al.,  2  Hayw.  300 ;  Hume  v.  Scott,  3 
iNIarsh.  261  ;  Gilliam  v.  State,  1  Head.  88  ;  Henderson  v.  Hayne,  2  Mete.  (Ky.) 
342.  But  the  adverse  party  may  afterwai'ds  inquire  respecting  the  reputation 
of  the  witness  in  point  of  veracity  :  Noel  v.  Dickey,  3  Bibb  258.  In  Massachu- 
setts, the  credit  of  a  female  witness  may  be  impeached,  by  showing  that  she  is 
a  common  prostitute :  Comm.  v.  Murphy,  14  Mass.  387 ;  aliter  in  New  York ; 
Jackson  v.  Lewis,  13  Johns.  504.  M. 

But  the  decision  in  Commonwealth  v.  Murphy,  if  not  overruled,  seems  to  be 
confined  in  its  application  to  the  case  in  which  a  common  prostitute  is  offered 
as  a  witness ;  for  where  upon  a  complaint  under  statute  1785,  c.  66,  ^  2,  for  the 
maintenance  of  a  bastard  child,  it  was  ruled,  that  evidence  that  the  general  char- 
acter of  the  complainant  for  chastity,  previous  to  her  connection  with  the  respond- 
ent was  bad,  and  that  she  had  previously  had  frequent  criminal  intercourse  with 
other  persons,  was  not  admissible  for  the  purpose  of  impeaching  her  credit 
as  a  witness :  Comm.  v.  Moore,  3  Pick.  194.  But  in  such  a  suit  the  woman 
herself  may  be  asked  on  the  cross-examination  whether  she  had  had  criminal 
connection  with  any  other  man,  about  the  time  she  charged  the  child  to  have 
been  begotten,  as  such  a  question  would  be  material  and  relevant  to  the  issue, 
for,  if  answered  in  the  affirmative,  it  would  prove  a  fact  rendering  it  impossible 
for  her  to  have  determined  who  was  the  father  of  the  child  ;  and  she  could  not 
refuse  to  answer,  on  the  ground  that  she  would  thereby  criminate  herself,  having 


238         KEBUTTING    THE    TESTIMONY     OF    WITNESSES. 

In  the  next  place,  the  witness  may  be  contradicted  by  others  who 
represent  the  fact  differently,  or  by  proof  that  he  has  said  or  written 

waived  her  privilege  by  voluntarily  testifying  to  matters  necessarily  criminating 
herself  upon  her  examination-in-chief:  Swift's  Law  of  Evid.  80.  I. 

Evidence  of  character  is  admissible  to  discredit  a  witness,  but  it  must  go  to 
his  general  character  and  not  to  specific  facts:  Wilkev.  Lightner,  11  S.  &  R, 
198;  Kimmelv.  Kimmel,  3  S.  &  R.  336;  State  v.  Parks,  3  Ired.  296;  Ramsey 
V.  Johnson,  3  Penna.  293;  Chess  v.  Chess,  1  Penna.  32;  Barton  v.  Mor- 
phes,  2  Dev.  520 ;  Walker  v.  State,  6  Blackf.  1  ;  Rixeij  v.  Bayce,  4  Leigh  330 ; 
Frt/e  V.  Bank,  11  111.  367  ;  Hoitt  v.  Moulton,  1  Fost.  586  ;  Gilbert  v.  Sheldon,  13 
Barb.  623 ;  Nugent  v.  State,  18  Ala.  521  ;  Wilson  v.  State,  16  Ind.  392;  Boon  v. 
Weathered,  23  Tex.  675  ;  Crabtree  v.  Kile,  21  111.  180.  That  the  evidence  must 
go  to  the  character  of  the  witness  for  truth  and  veracity,  and  not  to  general 
character,  see  Jackson  v.  Lewis,  13  Johns.  504;  Gilchrist  v.  McKee,  4  Watts 
380  ;  State  v.  Hoimrd,  9  N.  H.  485  ;  Wilds  v.  Blanchard,  7  Vt.  141  ;  Comm.  v. 
Moore,  3  Pick.  194;  Bakeman  v.  Eose,  14  Wend.  105;  U.  S.  v.  Vansickle,  2 
McLean  219;  Phillips  v.  Kingjield,  1  App.  375;  State  v.  Bruce,  11  Shep.  71  ; 
Spears  v.  Forrest,  15  Vt.  435  ;  Bakeman  v.  Rose,  18  Wend.  146  ;  State  v.  O'Neale, 
4  Ired.  88  ;  Crane  v.  Thayer,  18  Vt.  162  ;  Sorrelle  v.  Craig,  9  Ala.  534  ;  Comm. 
v.  Churchill,  11  Mete.  538  ;  Ford  v.  Ford,  7  Humph.  92;  contra,  Hume  v.  Scott,  3 
A.  K.  Marsh.  260;  Tuckett  v.  May,  3  Dana  79  ;  Johnson  v.  People,  3  Hill  178  ; 
State  V.  Bosicell,  2  Dev.  209  ;  Day  v.  State,  13  Mo.  422.  The  first  question  to  a 
witness  called  to  impeach  the  character  of  another  must  be  confined  to  his  repu- 
tation for  truth  :  Teese  v.  Huntingdon,  23  How.  (U.  S.)  2  ;  State  v.  Sater,  8  Clarke 
'  420 ;  Boyle's  Exr's  v.  Kritzer,  10  Wright  465  ;  Rathhurn  v.  Ross,  46  Barb.  127  ; 
Aijres  V.  Duprey,  27  Tex.  593 ;  Sharp  v.  State,  16  Ohio  St.  218  ;  Killmrn  v. 
Mullen,  22  Iowa  498  ;  George  v.  State,  39  Miss.  570 ;  Bell  v.  Renner,  16  Ohio  St. 
45 ;  Comm.  v.  Billings,  97  Mass.  405 ;  Comm.  v.  Latvler,  12  Allen  585 ;  Bullard 
V.  Lam,hert,  40  Ala.  204 ;  Lyman  v.  Philadelphia,  6  P.  F.  Smith  488  ;  Knight  v. 
House,  29  Md.  194 ;  State  v.  Cherry,  63  N.  C.  493  ;  Taylor  v.  Comw.,  3  Bush  508  ; 
Simmons  v.  Holster,  13  Minn.  249  ;  Taylor  v.  Clendening,  4  Kans.  524 ;  Atwood 
V.  Impson,  20  N.  J.  (Eq.)  150;  Z^■n5r  v.  Ruchman,  Ibid.  316;  Harris  v.  ^S/a/e, 
30  Ind.  131  ;  Chance  v.  Indianapolis  Road  Co.,  32  Ind.  472  ;  Wetherbee  v.  Harris, 
103  Mass.  5(/5 ;  Clackner  v.  ^Stoie,  33  Ind.  412.  As  to  want  of  character  for 
chastity  of  a  female  witness,  see  Boles  v.  State,  46  Ala.  204 ;  Ford  v.  Jones,  62 
Barb.  484.  The  party  against  vrhom  a  witness  has  testified  may  show  his  bias  :  Bat- 
dorffy.  Farmers''  Bank,  11  P.  F.  Smith  179.  It  is  not  essential  that  the  impeaching 
witness  should  say  that  he  vrould  not  believe  the  other  on  his  oath  :  People  v. 
Tyler,  35  Cal.  553.  A  stranger  sent  by  a  party  to  the  neighborhood  of  a  witness 
to  learn  his  character,  vyill  not  be  permitted  to  testify  as  to  the  result  of  his  in- 
quiries :  Reid  V.  Reid,  2  Green  101.  As  to  how  the  credit  of  a  witness  may  be 
supported,  see  Hawser  v.  Comm.,  1  P.  F.  Smith  332;  People  v.  Sachett,  14  Mich. 
320 ;  State  v.  Parish,  22  Iowa  284  ;  Queener  v.  Morrow,  1  Cald.  123.  When  a 
witness  swears  to  the  general  bad  character  of  another  witness,  he  may  be  asked 
upon  crosH-cxaiiiination  to  name  the  individuals  whom  he  heard  speak  dis- 
paragingly of  the  witness  and  what  was  said  :   State  v.  Perkins,  66  N.  C.  126. 

But  evidence  of  the  general  good  character  of  a  witness  is  inadmissible  when 
his  general  character  has  not  been  impeached,  although  an  attempt  has  been 
made  to  prove  facts  inconsistent  with  his  testimony,  and  to  show  that  he  had 


CHARACTER,  HOW  IMPEACHED.  238 

that  which  is  inconsistent  with  his  present  testimony ;  for  this  pur- 
pose a  letter  may  be  read  in  which  he  has  given  a  different  account 
of  the  matter.*^ 

^  De  Sailli/  v.  Morgan,  2  Esp,  C.  691.  The  action  was  by  a  schoolmaster,  for 
the  board  and  education  of  the  defendant's  sons :  the  defence  was,  his  neglect 
of  the  scholars,  &c.  A  witness  for  the  plaintiff,  the  usher  of  the  school,  swore 
that  the  treatment  of  the  scholars  was  proper  ;  and,  to  contradict  him,  a  letter 
written  by  him  to  a  former  scholar,  containing  immoral  matter,  was  read  in  evi- 
dence. So  a  prisoner  {ante.  pp.  229,  230)  or  a  prosecutor,  in  a  criminal  case, 
may  contradict  a  witness  by  means  of  his  deposition  before  the  magistrate : 
Oldroyd's  ease,  R.  &  R.  C.  C.  88,  see  ante,  p.  231,  and  ^os<,  Vol.  II.  tit.  Deposi- 
tions. The  courts  of  Scotland  exclude  such  evidence,  upon  the  principle  that 
the  Avitness  ought  to  deliver  his  testimony  unfettered  by  previous  declarations  : 
Hume's  Com.  on  Crim.  Law  of  Scotland,  vol.  ii.  p.  367  ;  Burnet's  Treatise,  p. 
467.  The  policy  of  this  rule  is,  to  say  the  least,  questionable ;  if  it  i-elieve  a 
Avell-disposed  witness  from  embai'rassment  in  stating  the  truth,  it  also  relieves 
a  fraudulent  one  from  the  difficulty  of  explaining  a  statement  made  at  a  time 

been  privy  to  a  fraud  :  Rogers  v.  Moore,  10  Conn.  13  ;  Pratt  v.  Andrews,  4  Comst. 
493  ;  Braddee  v.  BrownfieJd,  9  Watts  124 ;  Starks  v.  People,  5  Denio  106 ;  People 
V.  Gag,  3  Seld.  378 ;  Webster  v.  Mag,  9  Harris  274 ;  Vernon  v.  Tucker,  30  Md. 
456.  If  a  question  put  to  a  witness  is  an  imputation  on  his  character,  and  is 
calculated  to  degrade  him  before  the  jury,  evidence  as  to  his  character  is  ad- 
missible by  the  other  party :  State  v.  Cherrg,  63  N.  C.  493  ;  Clark  v.  Bond, 
29  Ind.  555 ;  except  when  he  is  a  stranger :  Mesnam  v.  Railroad,  20  Conn. 
354.  See  Williamson  v.  Peel,  29  Iowa  458;  Weir  v.  McGee,  25  Tex.  (Suppl.) 
20.  And  except  when  the  witness  and  person  injured  in  an  indictment  for 
an  attempt  to  commit  a  rape  was  deaf  and  dumb:  State  v.  DeWolf,  8  Conn. 
93  ;  so  generally  in  a  case  of  rape  :  Turneg  v.  State,  8  S.  &  M.  104.  An  attempt 
to  impeach  a  witness,  although  unsuccessful,  warrants  the  introduction  of  evi- 
dence to  support  his  character  :  Comm.  v.  Ingraham,  7  Gray  46.  Mere  contra- 
diction among  witnesses  examined  in  court  supplies  no  ground  for  admitting 
evidence  of  general  chai'acter:  Pruitt  v.  Cox,  21  Ind.  15.  Proof  that  a  witness 
had  made  material  false  statements  which  are  relied  on  as  proving  him  unworthy 
of  credit,  Avill  not  authorize  the  party  calling  him  to  introduce  evidence  of  his 
general  reputation  for  truth:  Brown  v.  Mooers,  6  Gray  451.  AVhen  a  Witness  is 
impeached  only  by  proof  of  contradictory  statements,  or  by  counter  proof  of 
pai'ticular  facts,  it  cannot  be  supported  by  evidence  of  good  character :  Frost  v. 
McCargan,  29  Barb.  617;  Chapman  v.  Cooleg,  12  Rich.  (Law)  654;  Vance  v. 
Vance,  2  Mete.  (Ky.)  581  ;  contra,  Burrell  v.  State,  18  Tex.  713.  A  party  has 
a  right  to  impeach  the  general  character  of  a  witness  for  his  adversary,  though 
the  testimony  which  such  witness  has  given  related  solely  to  the  general  char- 
acter of  another  witness :  Starks  v.  People,  5  Denio  106  ;  State  v.  Cherry,  63  N. 
C.  493  ;  State  v.  Moore,  25  Iowa  128.  Upon  the  trial  of  an  indictment  for  rape, 
the  character  of  the  prosecutrix  may  be  impeached  by  general  evidence  of  her 
reputation,  but  not  by  evidence  of  particular  acts  of  unchastity  :  State  v.  White, 
35  Mo.  500.  Character  for  care,  skill,  truth,  &c.,  though  growing  out  of  the 
special  acts  of  a  party,  cannot  be  established  by  proof  of  such  acts,  but  by  evi- 
dence of  general  reputation  :  Frazier  v.  Pennsylvania  Railroad  Co.  2  Wright  104. 


238         REBUTTING    THE    TESTIMONY     OF    AVITNESSES. 

It  is  a  general  rule,  that  whenever  the  credit  of  a  witness  is  to  be 
impeached  by  proof  of  anything  that  he  has  said,  or  declared,  or 
done  in  relation  to  the  cause,  he  is  first  to  be  asked,  upon  cross- 
examination,  whether  he  has  said  or  declared,  or  done  that  which  is 
r*9^P1    i^itended  to  be  proved.     *For  in  every  such  case  there  are 

two  questions :  first,  whether  the  witness  ever  did  the  act  or 
used  the  expressions  alleged;  secondly,  whether  his  having  done  so 
impeaches  his  credit,  or  is  capable  of  explanation.®  It  would  be 
manifestly  unjust  to  receive  the  testimony  of  the  adversary's 
r^'^^Ol    *witness  to  prove  the  fact,  without  also  admitting  the  party's 

witness  to  deny  it ;  and  assuming  the  act  to  have  been  done, 
or  expression  used,  it  would  also  be  unjust  to  deny  to  the  party,  or 
the  witness  who  admits  the  act  or  expression,  the  best,  or,  it  may  be, 
the  only  means  of  explanation.^^ 

when  he  was  under  no  temptation  to  deceive,  and  thereby  excludes  a  consider- 
able test  of  credit.  An  honest  witness  will  disclose  the  truth  in  spite  of  any 
prior  declaration  ;  a  dishonest  one  would  certainly  be  encouraged  by  the  exclu- 
sion. It  seems  to  be  the  wiser  policy  not  to  yield  a  test  of  truth,  at  a  certain 
sacrifice,  for  the  sake  of  an  advantage  so  doubtful. 

«  The  Queen's  .Case,  2  B.  &  B.-(6  E.  C.  L.  R.)  300.  The  following  questions 
were  proposed  by  the  House  of  Lords  to  the  judges  :  "  If  a  witness  in  support  of 
a  prosecution  has  been  examined  in  chief,  and  has  not  been  asked  in  cross-ex- 
amination as  to  any  declaration  made  by  him,  or  as  to  acts  done  by  him,  to  pro- 
cure persons  corruptly  to  give  evidence  in  support  of  the  prosecution,  would  it 
be  competent  to  the  party  accused  to  examine  witnesses  in  his  defence,  for  the 
purpose  of  proving  such  declarations  or  acts,  without  first  calling  back  the 
witnesses  to  be  examined  or  cross-examined  as  to  the  fact  whether  he  ever  made 
such  declarations  or  did  such  acts?"  Again  :  "  If  a  witness,  called  on  the  part 
of  a  plaintiff  or  prosecutor,  gives  evidence  against  the  defendant,  and  if,  after 
cross-examination,  they  discover  that  the  witness  so  examined  has  corrupted  or 
endeavored  to  corrupt  another  person  to  give  false  testimony  in  such  cause, 
whether  the  defendant's  counsel  may  not  be  permitted  to  give  evidence  of  such 
corrupt  act  of  the  witness,  without  calling  him  back?"'  The  judges  held,  that 
the  proposed  proof  could  not,  in  either  case,  be  adduced,  without  a  previous 
cross-examination  of  the  witness  as  to  the  subject  matter. 

'  It  is  upon  this  principle  that  statements  by  a  deceased  attesting  witness  to  a 
document  cannot  be  given  in  evidence  upon  proof  of  his  signature.  Thus,  in 
Stobert  v.  Dryden,  1  M.  &  W.  615,  it  was  held  that  evidence  of  declarations  by 
a  deceased  attesting  witness,  whose  signature  was  proved,  that  he  had  forged 
or  fraudulently  altered  the  instrument,  was  inadmissible. 

'  In  general,  a  witness  cannot  be  impeached  by  proving  that  at  other  times  he 
made  contradictory  statements,  unless  he  has  been  interrogated  as  to  such  state- 
ments: McKinney  v.  Neil,  1  McLean  540;  Ever-ionv.  Carpenter,  17  Wend.  419  ; 
Franklin  Bank  v.  Steam  Navigation  Co.,  11  Gill  &  Johns.  28  ;  Able  v.  Shields, 
7  Mo.  120  ;  Doe  v.  Reacjan,  5  Blackf.  217  ;  Stale  v.  Marter,  2  Ala.  43  ;  Weaver 


INQUIRY    PREVIOUS    TO     CONTRADICTION.  240 

If  the  witness  admit  the  words,  declaration,  or  act,  proof  on  the 
other  side   becomes   unnecessary,  and   an  opportunity  is   aftorded  to 

V.  TrayJor,  5  Ibid.  5G4 ;  Garrett  v.  State,  6  Mo.  1  ;  McAIeer  v.  McMuUen,  2  Barr 
32;  Weinsorpjliii  v.  State,  7  Blackf.  286  ;  Kay  v.  Fredrit/al,  3  Barr  221  ;  Regnier 
V.  Cabot,  2  Gilin.  3-4;  Downer  v.  Dana,  19  Vt.  338;  Palmer  v.  Haight,  2 
Barb.  210;  Howell  v.  Reynolds,  12  Ala.  128;  Clapp  v.  Wilson,  5  Denio  285; 
Williams  v.  Turner,  7  Ga.  348  ;  Johnson  v.  Kinsey,  Ibid.  428  ;  Moore  v.  Bettis^ 
11  Humph.  67  ;  Clementine  v.  -Stoie,  14  Mo.  112 ;  King  v.  Wicks,  20  Otiio  87  : 
Siyrague  v.  Caldwell,  12  Barb.  516  ;  Carlisle  v.  Hunley,  15  Ala.  623  ;  Nelson  v. 
Iverson,  17  Ibid.  216;  Conrad  v.  Griffey,  16  How.  38  ;  Stewart  v.  Chadwick,  8 
Clarke  463  ;  iiearrs  v.  Cojt>?e?/,  10  N.  Y.  93 ;  Fa^iloH  v.  National  Ass.  Co.,  20  N. 
Y.  32 ;  iSto/tf  V.  Davis,  29  Mo.  391  ;  Keichingman  v.  /Sto^e,  6  Wise.  426  ;  Wright 
V.  Cumpsty,  5  Wright  102 ;  Oice;t  v.  Rynerson,  17  Ind.  620 ;  Scott  v.  King,  7 
Minn.  494.  A  witness  may  be  impeached  by  showing  that  he  has  made  contra- 
dictoi'y  statements,  although  his  denial  of  such  statements  is  not  positive,  but 
merely  that  he  does  not  remember  them  :  Nute  v.  Nute,  41  N.  H.  60 ;  Ray  v. 
Bell,  24  111.  444;  Gregg  y.  Jamison,  b  P.  F.Smith  468.  The  rule  does  not 
however  apply  when  the  evidence  to  impeach  the  witness  is  his  sworn  deposi- 
tion previously  taken  in  the  same  cause  :  Williams  v.  Chapman,  7  Geo.  467.  It 
has  been  held  however  in  some  cases  not  to  be  matter  of  error  to  permit  such 
evidence,  but  to  rest  altogether  in  the  sound  discretion  of  the  court:  Hedge  v. 
Clapp,  22  Conn.  262 ;  Kay  v.  Fredrigal,  3  Barr  221. 

As  to  contradictory  statements  generally,  see  Camethy.  Bayley,  14  Allen  532; 
State  V.  Johnson,  12  Minn.  476  ;  Ellsworth  v.  Potter,  41  Vt.  685  ;  Hogan  v. 
Cregan,  6  Hob.  138  ;  Winslow  v.  Neiolan,  45  111.  145  ;  Noonan  v.  Ilsley,  22  Wise. 
27  ;  Hicks  v.  Stone,  13  Minn.  434 ;  Robinson  v.  Petzer,  3  W,  Va.  335  ;  Patten  v. 
People,  18  Mich.  314  ;  Foot  v.  Hankins,  98  Mass.  523  ;  Von  Glahn  v.  Von  Glahn, 
46  111.  134  ;  State  v.  Kingsbury,  58  Me.  238  :  Spaunhorst  v.  Link,  46  Mo.  197  ; 
Coimn.  V.  Marrow,  3  Brewst.  402;  Ordway  v.  Haynee,  50  N.  Y.  159;  Warren  v. 
Haight,  62  Barb.  490 ;  Ayres  v.  Diiprey,  27  Tex.  593  ;  Melan  v.  State,  24  Ark. 
346  ;  Knowles  v.  People,  15  Mich.  408  ;  Paxton  v.  Dye^  26  Ind.  393  ;  McCabe  v. 
Brayton,  38  N.  Y.  196. 

That  a  proper  foundation  must  be  laid  for  such  evidence  by  first  calling  the 
attention  of  the  witness  to  the  intended  contradiction,  see  Bradford  v.  Barday, 
39  Ala.  33;  Higgins  v.  Carlton,  28  Md.  115;  Callanan  v.  Shaw,  24  Iowa  441  ; 
State  V.  Hoyt,  13  Minn.  132  ;  Matthis  v.  State,  33  Ga.  24 ;  Williams  v.  Raiolins, 
Ibid.  117;  State  v.  Collins,  32  Iowa  36;  Gibbs  v.  Linabury,  22  Mich.  479; 
Gilbert  v.  Sage,  5  Lans.  287.  If  a  party  desires  to  cross-examine  a  witness  as 
to  former  statements  by  him  deposed  to,  he  must  first  read  the  witness's  entire 
deposition  in  evidence,  otherwise  it  may  be  read  at  any  time  :  Lightfoot  v. 
People,  16  Mich.  507.  A  witness's  deposition  is  original  evidence  for  the  party 
against  whom  he  is  sworn,  and  should  be  read  as  independent  testimony,  and 
need  not  be  called  to  his  attention,  unless  it  is  desired  to  cross-examine  him 
concerning  omissions  or  discrepancies  :  Lightfoot  v.  People,  16  Mich.  507.  That 
a  witness  impeached  by  contradictory  statements  out  of  court  cannot  be  corrobo- 
rated by  showing  other  consistent  statements,  see  U.  S.  v.  Holmes,  1  ClifF.  98  ; 
State  V.  Vincent,  24  Iowa  570  ;  Boyd  v.  First  Bank,  25  Ibid.  255 ;  Butler  v. 


240         REBUTTING    THE    TESTIMONY    OF    WITNESSES. 

the  witness  of  giving  such  reasons,  explanations,  or  exculpations  of 
his  conduct,  if  any  there  be,  as  the  circumstances  may  furnisli ;  and 
thus  the  whole  matter  is  brought  before  the  court  at  once,  which  is 
the  most  convenient  course.^ 

If  the  witness  deny  the  words,  declaration,  or  act  imputed  to  him, 
then,  if  it  be  not  a  matter  collateral  to  the  cause,  witnesses  may  be 
called  to  contradict  him.''  But  it  is  not  enough  to  ask  a  witness  (in 
order  to  found  a  contradiction)  the  general  question  Avhether  he  has 
ever  said  so  and  so ;  he  must  be  asked  as  to  the  time,  place,  and 
person  involved  in  the  supposed  contradiction,'  or  some  other  circum- 
stance^ sufficient  to  point  out  the  particular  occasion.  So,  if  the 
statement  imputed  to  the  witness  be  contained  in  any  writing,  it 
must  be  put  into  his  hand,  and  he  must  be  asked  if  it  is  in  his  hand- 
writing.J 

If  the  witness  neither  directly  admit  nor  deny  the  act  or  declara- 
tion, as  where  he  merely  says  that  he  does  not  recollect,  or,  as  it 
seems,  gives  any  other  indirect  answer  not  amounting  to  an  admis- 
r*9J.n  sion.  it  is  competent  for  the  *adversary  to  prove  the  affirma- 
tive, for  otherwise  the  witness  might  in  every  such  case  ex- 
clude evidence  of  what  he  had  done  or  said,  by  answering  that  he 
did  not  remember. '^ 

8  By  the  judges,  in  the  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  313. 

"  2  B.  &  B.  (6  E.  C.  L.  R.)  313,  and  sujjra,  Long  v.  Hitchcock,  9  C.  &  P.  (38 
E.  C.  L.  R.)  619. 

•  Angus  v.  Smith,  Moo.  &  M.  (22  E.  C.  L.  R.)  473 ;  Andrews  v.  Askeg,  8  C. 
&  P.  (34  E.  C.  L.  R.)  7  ;  Croivley  v.  Page,  7  C.  &  P.  (32  E.  C.  L.  R.)  789. 

J  Crowleg  v.  Page,  7  C.  &  P.  789. 

^  Croivley  v.  Page,' 7  C.  &  P.  789,  cor.  Parke,  B.,  who  observed,  "If  the 
witness,  on  cross-examination,  admits  the  conversation  imputed  to  him,  there 
is  no  necessity  for  giving  further  evidence  of  it;  but  if  he  says  he  does  not 
recollect,  that  is  not  an  admission,  and  you  may  give  evidence  on  the  other 
side  to  prove  that  the  witness  did  say  what  is  imputed,  always  supposing  the 

Truslow,  55  Barb.  293  ;  Comm.  v.  Carey,  2  Brewst.  404 ;  but  see  contra,  Dailcy 
V.  State,  28  Ind.  285.  Where  plaintiff's  testimony  is  contradicted  by  defendant 
though  iiiipeiichmcnt  may  be  disclaimed,  testimony  corroborative  of  the  plain- 
tiff is  admissible:  McAJeer  v.  Horsey,  35  Md.  439.  The  statement  of  a  witness 
put  in  writing  at  a  time  when  he  had  no  reason  to  misrepresent,  is  admissible  in 
rebuttal  of  evidence  introduced  to  impeach  him,  and  tending  to  show  that  he 
had  made  statements  inconsistent  with  his  testimony  :  Stewart  v.  People,  23 
Mich.  03.  The  limit  to  which  a  witness  may  be  cross-examined  on  matters  not 
relevant  to  the  issue,  for  the  purpose  of  judging  of  his  character  and  credit  from 
liis  own  voluntary  admissions,  rests  in  the  sound  discretion  of  the  court:  Wroe 
V.  Stale,  20  (Jiiio  St.  400. 


EVIDENCE    TO    CONTRADICT.  241 

If  the  witness  decline  to  answer  on  account  of  the  tendency  of  the 
question  to  criminate  him,  the  adverse  party  is  still  at  liberty  to  ad- 
duce the  same  proof.' '  And  the  possibility  that  the  witness  may  on 
that  ground  decline  to  answer  affords  no  suiBcient  reason  for  not 
giving  him  the  opportunity  of  answering  with  a  view  to  explain  the 
circumstances  and  to  exculpate  himself.™  And  it  is  of  great  impor- 
tance that  this  opportunity  should  be  thus  afforded,  not  only  for  the 
reasons  thus  suggested,  but  because  such  explanation,  if  not  given  in 
the  first  instance,  may  be  rendered  impossible  ;  for  a  witness  who 
has  been  examined,  and  has  no  reason  to  suppose  that  his  further  at- 
tendance is  requisite,  often  departs  the  court,  and  may  not  be  found 
or  brought  back  until  the  trial  is  at  an  end." 

If  indeed  the  witness's  moral  character  be  relevant  to  the  issue,  as 
in  an  action  for  seduction  where  the  seduced  person  is  examined, 
evidence  that  the  witness  has  used  expressions  inconsistent  with  such 
character  may  be  given,  without  first  asking  the  witness  whether  they 
have  *been  used.  But  if  the  expression  would  be  contra-  r^i)4i)-\ 
dictory  to  the  evidence  she  has  given  in  the  cause,  and  evi- 
dence of  them  is  tendered  simply  by  way  of  contradiction,  they 
cannot  be  proved  without  asking  the  witness  the  previous  question, 
although  they  are  in  themselves  relevant  to  the  issue.  Thus  where, 
in  an  actipn  for  seduction  of  the  plaintiff's  daughter,  she  proved  that 
the  defendant  seduced  her  and  was  the  father  of  her  child,  and 
stated  that  she  did  not  know  A.  B.,  evidence  that  she  had  said  that 
A.  B.  was  her  seducer  and  the  father  it  was  held  could  not  be  given 
by  way  of  contradicting  her,  without  first  asking  her  whether  she 
had  said  so.° 

There   is    no   distinction  for  these  purposes   between  declarations 
made  by  the  witness,  and  acts  done  by  him  which  relate  to  the  cause  ;p 

statement  to  be  relevant  to  the  matter  at  issue.  This  has  always  been  my 
practice.  If  the  rule  were  not  so,  you  could  never  contradict  a  witness  who  said 
he  could  not  remember."  Tindal,  L.  C.  J.,  is  stated  to  have  ruled  the  contrary 
in  an  earlier  case :  Pain  v.  Beeston,  1  M.  &  Rob.  20.  And  see  Long  v.  Hitch- 
cock, 9  C.  &  P.  (38  E.  C.  L.  R.)  619. 

'  The  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  314. 

"  Ibid. 

°  By  the  judges,  in  The  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  314. 

"  Carpenter  v.  fVall,  11  A.  &  E.  (39  E.  C.  L.  R.)  803. 

p  The  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  311. 

^  A  witness  is  not  bound  to  answer  as  to  how  he  testified  on  a  former  trial, 
relative  to  the  matter  in  question,  if  he  objects  to  the  inquiry :  Mitchell  v.  Hin- 
man,  8  Wend.  667.     See  McCahe  v.  Brat/ton,  38  N.  Y.  196. 
15 


242         REBUTTING     THE    TESTIMONY     OF     WITNESSES. 

in  the  one  case  as  well  as  the  other,  an  opportunity  must  be  afforded 
the  witness  of  explaining  his  conduct  before  evidence  is  adduced  to 
impeach  his  credit  by  proof  of  the  fact. 

If  the  adverse  counsel  has  omitted  to  lay  such  a  foundation  by  pre- 
viously interrogating  the  witness  on  the  subject  of  those  declarations, 
the  court  will  of  its  own  authority,  call  back  the  witness,  in  order 
that  the  requisite  previous  questions  may  be  put.''  And  even  al- 
thouo-h  the  fact  to  be  adduced  in  order  to  impeach  the  witness's 
testimony  be  not  discovered  until  after  the  conclusion  of  the  cross- 
examination,  the  rule  still  holds ;  and  evidence  cannot  be  given  for 
the  purpose  of  thus  impeaching  his  testimony  without  previous  ex- 
amination of  the  witness,  even  although  the  witness  should  have 
departed  the  court,  and  cannot  be  brought  back  after  the  discovery 
has  been  made.'' 

The  witness  having  been  asked  on  cross-examination,  if  he  has  not 

r*oj.qi    ^^^^  particular  expressions,  in  order  to  lay   *a   foundation 

for  contradicting  him  ;  upon  his  denial,  the  witness  called  to 

prove  that  he  did  use  them  may  be  asked  as  to  the  particular  words 

read  from  the  brief.^ 

The  evidence  tendered  by  way  of  contradiction  must  be  legitimate 
evidence  of  the  facts  or  statement ;  thus,  in  order  to  impeach  the 
credit  of  a  witness  for  a  defendant  upon  an  information  for  assault- 
in<7  revenue  oflBcers,  by  proving  his  previous  testimony  on  an  infor- 
mation before  two  magistrates  against  the  same  defendant  for  having 
smuggled  goods  in  his  possession,  proof  of  the  conviction  containing 
the  testimony  of  the  witness  is  insuflficient ;  it  is  necessary  to  prove  it 
by  the  testimony  of  those  who  heard  what  was  said.'  The  record  of 
conviction  is  conclusive  for  the  purpose  for  which  it  is  intended,  that 
is,  to  prove  the  condemnation ;  but  it  is  no  evidence  to  prove  the  tes- 
timony of  the  witnesses. 

After  proof  in  a  criminal  proceeding  that  the  prosecutor  has  em- 
ployed A.  B.,  an  agent,  to  procure  and  examine  witnesses  in  support 
of  the  charge,  it  is  not  competent  to  the  defendant  to  examine  a 
witness  to  prove  that  A.  B.,  who  is  not  examined  as  a  witness,  had 
offered  a  bribe  to  give  evidence  upon  the  trial,  or  to  bring  papers 
with  him  belonging  to  the  defendant ;  for  the  mere  employment  of  an 

1  IJy  the  jud/^es,  in  The  Queen's  case,  2  B.  &  B.  (G  E.  C.  L.  K.)  314. 
'  T/ie  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  312. 

•  Edmonds  v.  Walter,  3  Stark,  C.  (3  E.  C.  L.  11.)  8 ;  s.  r.,  Hallett  v.  Cuusens, 
2  M.  it  Rob.  238 ;  ante,  p.  171. 

'  li.  V.  Iluwe,  1  Camp.  461,  cor.  Ld.  Ellenborough. 


PARTY    CONTRADICTING     HIS    OWN     WITNESS.  243 

agent  for  the  purpose  of  procuring  and  examining  Avitn esses  is  in  itself 
an  innocent,  and  in  many  cases  a  necessary  act,  and  it  is  not  to  be 
presumed  that  the  prosecutor  directed  tlic  agent  to  use  any  unhiwful 
means  for  the  purpose ;  neither  can  any  legitimate  inference  or  con- 
clusion be  drawn  from  this  fact  against  the  credit  and  veracity  of  the 
witnesses  Avho  are  examined  ;  for  it  is  not  to  be  presumed,  in  the  absence 
of  all  proof,  that  they  were  either  parties  to  the  illegal  act  or  privy  to 
it,  or  to  any  act  of  the  like  nature." 

*As  upon  an  indictment  for  a  conspiracy  it  is  competent 
to  the  prosecutor  to  prove,  in  the  first  instance,  the  existence  *-  '^  J 
of  a  conspiracy,  by  general  evidence,  without  proving  participation  by 
the  defendant,''  so  it  is  competent  to  a  defendant  on  a  criminal  charge, 
first  to  prove  a  conspiracy  to  suborn  witnesses  for  the  destruction  of 
his  defence,  and  afterwards  to  affect  the  prosecutor  by  proof  of  his 
participation,''  provided  proof  of  such  a  conspiracy  would  aiford  a 
legitimate  ground  of  defence.^ 

A  party  cannot  discredit  the  testimony  of  his  own  witness,  by  gen- 
eral evidence  of  incompetency ;  for  it  would  be  unfair  that  he  should 
have  the  benefit  of  the  testimony  if  favorable,  and  be  able  to  reject  it 
if  the  contrary.''  ^ 

Where,  however,  a  party  is  under  the  necessity  of  calling  a  witness 
for  the  purpose  of  satisfying  the  formal  proof  which  the  law  re- 
quires, he  is  not  precluded  from  calling  other  witnesses  who  give  con- 
tradictory testimony.''  And  even  where  a  witness  by  surprise  gives 
evidence  against  the  party  who  called  him,  that  party  will   not  be 

"  By  the  judges,  in  The  Queen's  case,  2  B.  &  B.  (G  E.  C.  L.  R.)  302. 

"  Vol.  II.,  tit.  Conspiracy  ;  2  B.  &  B.  (6  E.  C.  L.  R.)  303. 

^  The  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  B.)  303,  309. 

'^  2  B.  &  B.  (6  E.  C.  L.  R.)  311.  Qucere,  In  what  cases  proof  of  a  crime  com- 
mitted by  a  prosecutor  in  so  conspiring  can  afford  any  legal  defence  to  a  defend- 
ant? 

y  Per  Buller,  J.,  B.  N,  P.  297  ;  see  also  Hastings'  trial,  2  Hawk.  c.  46,  s.  196, 
Curwood's  edition  :  nor  can  he  object  to  the  admissibility  of  evidence,  after  hav- 
ing allowed  it  to  be  given  :  Webb  v.  Smith,  Ry.  &  M.  (21  E.  C.  L.  R.)  106. 

'  As  in  the  remarkable  case  of  Mr.  Joliffe's  will.  See  tit.  Will  ;  and  see  Alex- 
ander V.  Gibson,  2  Camp.  556. 

— — — . 'tu.    ■ — . 

^  Bean  v.  Hamilton,  Tayl.  IJ  ;  Sawrey  v.  Murrell  et  al.,  2  Hayw.  397,  aec. 
Where  one  witness  is  contradicted  by  another  who  is  called  by  the  same  party, 
the  first  cannot  be  called  to  disprove  what  the  second  has  testified :  Rapp  v.  Le 
Blanc  et  al.,  1  Dall.  63.  In  North  Carolina,  it  has  been  held,  that  in  criminal 
prosecutions  the  Attorney-General  may  discredit  a  witness  called  by  him  to  tes- 
tify on  the  part  of  the  State  :  State  v.  Norris,  2  Ilayw.  420.  M. 


244  REBUTTING    THE    TESTIMONY    OF    WITNESSES. 

precluded  from  proving  bis  case  by  otber  witnesses;  for  it  woubl  be 
contrary  to  justice  tbat  tbe  treaebery  of  a  witness  sbould  exclude 
a  party  from  establisbing  tbe  trutb  by  aid  of  otber  testimony.  And 
tbeir  testimony,  wbicb  would  bave  been  admissible  bad  tbey  been 
called  first,  cannot  in  principle  be  excluded  by  tbe  circumstance  of 
being  called  in  a  diflFerent  order.^  Accordingly,  wbere  a  plaintiff 
bad  called  tbe  servant  of  tbe  defendant  to  prove  a  warranty  of  a 
borse,  upon  wbicb  tbe  action  was  founded,  and  tbe  witness  denied 
tbat  be  warranted  tbe  borse,  tbe  plaintiff  was  allowed  to 
L  -     J    *prove  tbe  fact  by  means  of  otber  witnesses.*^     A  witness 

'  Alexander  v.  Gibson,  1  Camp.  556 ;  and  see  Richardson  v.  Allen,  2  Stark.  C. 
(3  E.  C.  L.  R.)  334 ;  Ewer  v.  Ambrose,  3  B.  &  C.  (10  E.  C.  L.  R.)  746 ;  Fried- 
lander  v.  The  London  Assurance  Company,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  193  ; 
Wright  V.  Beckett,  1  M.  &  Rob.  429. 

^  A  party  cannot  impeach  the  character  of  his  own  witness  ;  but  he  may  prove 
by  others  that  the  account  given  by  him  is  incorrect :  Lawrence  v.  Barker,  5 
Wend.  301;  Winston  v.  Moselei/,2  Stew.  137;  Farr  v.  Thompson,  Cheves  37; 
Stockton  V.  Demiith,  7  Watts  39  ;  Spencer  v.  White,  1  Ired.  236  ;  Brown  v.  Os- 
good, 25  Me.  505  ;  Shelton  v.  Bampion,  1  Ired.  216 ;  Bradford  v.  Bush,  10  Ala. 
386  ;  Wolfe  v.  Hanon,  1  Gill.  84 ;  Chamberlain  v.  Sands,  27  Me.  458  ;  Hunt  v. 
Fish,  4  Barb.  S.  C.  324;  People  v.  Safford,  5  Denio  112;  Keutgen  v.  Parks,  2 
Sanf.  S.  C.  60 ;  Thompson  v.  Rlanchard,  4  Comst.  303  ;  Hice  v.  Cox,  12  Ired. 
315  ;  Swamscot  Machine  Co.  v.  Walker,  2  Post.  457  ;  Hank  v.  Shier,  4  Rich.  233  ; 
Buckhalter  v.  Edwards,  16  Ga.  593  ;  Hall  v.  Houghton,  37  Me.  411  ;  Scavy  v. 
Dearborn,  19  N.  H.  351  ;  Brown  v.  Wood,  19  Mo.  475;  Brolley  v.  Lapham,  13 
Gray  294;  Champ  v.  Comm.,  2  Met.  (Ky.)  17  ;  Comm.  v.  Lamberton,  2  Brews. 
.  565 ;  Bockwood  v.  Poundsfone,  38  111.  199  ;  Thorn  v.  Moore,  21  Iowa  285.  A 
party  calling  a  witness  is  not  precluded  from  proving  the  truth  of  any  particu- 
lar fact  by  any  other  competent  evidence  in  direct  contradiction  to  what  such 
witness  may  have  testified :  Norioood  v.  Kenfeld,  30  Cal.  393  ;  Bockwood  v. 
Poundstone,  38  111.  199;  Thorn  v.  Moore,  21  Iowa  285;  People  v.  Shuhan,  49 
Barb.  217.  But  a  party  cannot  prove  inconsistent  statements  made  by  his  own  wit- 
ness, which  would  not  be  admissible  as  independent  evidence,  and  can  have  no 
effect  but  to  impair  his  credit :  Adams  v.  Wheeler,  97  Mass.  67  ;  Stearns  v.  Mer- 
chants^  Bank,  3  P.  F.  Smith  490.  A  witness  called  back,  after  being  dismissed 
by  the  party  who  subpoenaed  him,  becomes  the  witness  of  the  party  calling 
him  back — who  cannot  afterwards  impeach  him  :  Baker  v.  Bell,  46  Ala.  216. 

The  rule  that  a  party  cannot  discredit  his  own  witness  does  not  apply  to  those 
cases  where  the  party  is  under  the  necessity  of  calling  the  subscribing  witnesses 
to  an  instrument :  Dennett  v.  Dow,  5  Shep.  19;  Williams  v.  Walker,  2  Rich.  Eq. 
291  ;  Shorey  v.  Hussey,  32  Me.  579. 

^  Jackson  v.  Vurick,  7  Cow.  Rep.  239.  The  defendants  introduced  a  devisee 
to  prove  the  execution  of  a  bond  to  which  his  name  appeared  to  be  signed  as  a 
witness.  He  was  sworn  generally  as  a  witness  in  the  cause  and  denied  that  he 
had  ever  witnessed  the  bond.     The  plaintiff's  counsel  then  insisted  upon  cross- 


PARTY    CONTRADICTIXG     II  IS     OWN    WIT  X  ESS.  245 

called  by  the  plaintiff  in  an  action  on  a  policy  of  insurance  against 
fire,  to  prove  the  sale  of  goods  to  the  plaintiff,  swore  on  his  examina- 
tion in  chief,  that  an  invoice  of  the  goods  in  his  handwriting,  was 
made  out  by  him  after  the  fire,  and  that  a  letter,  in  his  handwriting, 
was  in  fact  written  in  London,  at  the  plaintiff's  house,  and  by  his 
desire,  and  that  the  plaintiff's  son  and  shopman  had  persuaded  him  to 
say  that  ho  had  sent  the  goods.  Lord  Tenterden  refused  to  allow  the 
son  and  shopman  to  be  called  again  to  negative  the  statement,  but  the 
Court  of  K.  B.  granted  a  new  trial,  for  the  evidence  was  offered  to 
prove  a  material  fact  relevant  to  the  issue,  and  it  was  held  that,  by 
such  evidence,  a  party  might  contradict  his  own  witness.'' 

Where  a  party  being  surprised  by  a  statement  of  his  own  witness, 
calls  other  witnesses  to  contradict  him  as  to  a  particular  fact,  the  whole 
of  the  testimony  of  the  contradicted  witness  is  not  therefore  to  be 
repudiated.  The  whole  is,  it  seems,  open  to  the  consideration  of  the 
jury.<= 

Doubt  has  been  entertained  on  the  question  whether  it  be  compe- 
tent to  a  party  to  impeach  the  testimony  of  his  own  witness  as  to  a 
particular  fact,  by  proof  that  on  a  former  occasion  he  gave  a  different 
account,  and  so  to  contradict  him  by  his  own  statement.  The  resolu- 
tion of  this  doubt  depends,  as  it  seems,  on  the  consideration  whether 
in  the  abstract,  such  evidence  is  essential  to  justice,  and  if  so,  then 
whether  the  party  is  to  be  excluded  from  such  evidence,  either  by  rea- 
son of  any  objection  in  the  nature  of  an  estoppel,  or  of  any  collateral 
inconvenience  which  might  result.  As  a  general  proposition,  it  is  es- 
sential to  ^justice  that,  in  a  case  where  the  testimony  of  two 
witnesses  upon  a  question  of  fact  is  contradictory,  every  aid  L  -^  J 
should  be  afforded  to  enable  the  jury  to  decide  which  of  them  is  better 
entitled  to  credit.  And  there  can  be  no  doubt  that,  in  such  a  case, 
the  knowledge  that  one  of  those  witnesses  on  a  former  occasion  gave 
an  account  of  the  matter  inconsistent  with  his  present  testimony,  is  of 
importance  in  order  to  enable  them  to  form  a  correct  conclusicni.  It 
is  admitted  on  all  hands  that  a  party  may,  by  such  means,  impeach 
the  credit  of  his  adversary's  witness  ;  and  it  is  manifest  that  a  third 

''  Friedlander  v.  The  London  Assurance  Company,  4  B.  &  Ad.  (2-iE.  C.  L.  R.) 
193. 
"  Bradley  y.Ricardo,  8  Bing.  (21  E.  C.  L.  R.)  57. 

examining  him  in  support  of  the  right,  to  which  the  defendants  objected  on  the 
ground  of  his  interest  as  a  devisee,  but  it  was  held  that  having  introduced  him 
as  a  witness  they  could  not  question  either  his  competency  or  credibility.     I. 


246         REBUTTING    THE    TESTIMONY    OF    WITNESSES. 

party,  vested  with  the  discretion  of  calling  what  witnesses  he  thought 
fit  for  the  ends  of  justice,  would,  in  the  exercise  of  that  discretion, 
submit  the  contradiction  to  the  jury.  It  has  indeed  been  decided,  in 
a  criminal  case,  that  it  is  competent  to  a  judge  to  do  this.  Upon  the 
trial  of  an  indictment  for  murder,*  the  judge,  in  his  discretion,  thought 
fit  to  call  as  a  witness  the  mother  of  the  prisoner,  whose  name  was  in- 
dorsed on  the  indictment,  but  who  had  not  been  called  by  the  counsel 
for  the  prosecution.  Her  evidence  tended  to  acquit  the  prisoner, 
and  the  judge,  with  a  view  to  impeach  her  credit,  referred  to  her 
deposition  ;  and  all  the  judges  were  of  opinion  that  it  Avas  compe- 
tent to  the  judge  to  do  so  ;  and  it  is  material  to  observe,  that  Lords 
Ellenborough  and  Mansfield  intimated  that  the  prosecutor  had  the 
same  right. 

If,  as  an  abstract  position,  it  be  essential  to  the  ends  of  truth  that 
such  evidence  should  be  submitted  to  a  jury,  it  remains  to  consider, 
in  the  first  place,  whether  the  party  having  called  the  witness  is,  as 
it  were,  to  be  estopped  from  afterwards  so  impeaching  his  credit.  It 
is  difiicult  to  come  to  this  conclusion.  A  party  who  is  prepared 
with  general  evidence  to  show  that  a  witness  whom  he  calls  is  wholly 
incompetent,  acts  unfairly  and  inconsistently  ;  for  knowing  his  wit- 
ness to  be  undeserving;  of  credit,  he  off"ers  *liim  to  the  jury 
L  "  J  as  the  witness  of  truth,  and  attempts  to  take  an  unfair  ad- 
vantage, by  concealing  or  disclosing  the  real  character  of  his  wit- 
ness, as  best  serves  his  purpose.  But  a  party  may  contradict  his  own 
witness  in  the  mode  in  question,  without  incurring  any  such  blame ; 
he  may  have  been  purposely  deceived  by  the  witness,  or,  though  not 
under  a  legal  necessity  to  call  him,  may  be  constrained  by  paucity 
of  evidence  under  the  particular  circumstances  ;  as  where  he  cannot 
easily  prove  some  other  fact  except  by  the  testimony  of  that  witness, 
or  where  the  not  calling  him  might  afford  a  ground  for  strong  ob- 
servation against  him.  It  may  frequently  happen  in  such  cases  that 
a  party  may  with  great  propriety  call  a  witness  as  to  a  particular 
fact,  and  yet  impeach  his  testimony  upon  another  material  fact,  of 
which  the  witness,  without  intending  to  deceive,  may  have  obtained 
but  an  imperfect  knowledge,  or  in  respect  of  which  his  memory  may 
have  erred. 

It  may  happen  that,  although  under  no  legal  necessity  to  call  a 
particular  witness,  he  may  have  none  other  than   an  adverse  witness 

"  11.  V.  Oldroijd,  Hubs.  &  Ily.  C.  C.  L.  88.  So,  per  Lord  Lyndhurst,  C.  B., 
B.  V.  Maddux  and  others,  Lancaster  Sp.  Ass.  1834 ;  1  Stark,  on  Evid.  G06,  3d 
edit. 


PARTY    CONTRADICTING    HIS     OAVN    WITNESS.  247 

to  prove  a  material  fact.  In  such  a  case,  it  would  frequently  be  at- 
tended with  great  hardship  to  preclude  the  party  from  using  such 
means  as  he  possessed,  to  shoAV  that  the  witness  admitted  only  such 
facts  as  lie  could  not  with  safety  deny,  but  misrepresented  some 
other  material  fact  in  which  he  could  not  be  contradicted,  and  where 
the  testimony,  though  false,  would  not  expose  him  to  a  prosecution 
for  perjury.  It  might  happen,  for  instance,  that  in  an  action  by  two 
partners,  for  goods  sold  and  delivered,  an  adverse  witness  might  be 
the  only  one  who  could  be  called  by  the  plaintiffs  to  prove  the  sale 
and  delivery  ;  a  fraudulent  witness  as  to  this  might  be  obliged  to  state 
the  truth,  for  fear  of  a  prosecution  for  perjury,  but  still  he  might  with 
safety  defeat  the  action  by  proof  of  payment  to  himself,  as  the  agent 
of  the  plaintiffs,  or  by  other  evidence  which  would  not  expose  him  to 
a  prosecution  for  perjury.      In  such,  and   many  other  cases  which 

might  be  put,  it  would  be  a  harsh  rule  to  exclude  the  party    ^ 

.  .  ,  r*2481 

*from  defeating  the  attempt  by  evidence  of  the  witness's  own    L  --     J 

statements  on  the  subject.^ 

In  the  case  of  an  adverse  witness,  it  may  frequently  happen  that 
■what  he  states  in  favor  of  the  party  who  calls  him  may  be  regarded 
as  truth  unwillingly  w^rung  from  a  reluctant  witness,  whilst  his  counter- 
statements  are  open  to  great  suspicion  ;  in  all  such  cases,  former  de- 
clarations by  the  witness  are  obviously  of  importance,  with  a  view  to 
ascertain  what  part  of  his  statement  ought  to  be  discredited,  whilst 
credit  is  given  to  the  rest.  The  ordinary  rules,  as  to  the  examination 
of  an  adverse  witness,  supply  an  analogy  in  favor  of  the  affirmative  of 
the  present  question,  in  all  cases  at  least  where  the  witness  is  appa- 
rently an  adverse  one.  Considering  the  admission  of  such  evidence, 
in  its  tendency  to  occasion  collateral  inconvenience,  the  argument  that 
a  party  ought  not  to  be  allowed  to  discredit  his  own  witness,  by  gene- 
ral evidence,  seems  to  have  little  weight ;  the  contradiction  proposed 
being  plainly  distinguishable,  as  already  observed,  from  any  general 
impeachment  of  the  witness's  character,  by  evidence  showing*him  to 
be  altogether  unworthy  of  credit.  It  would,  as  was  observed  in  the 
case  of  Friedlander  v.  The  London  Assurance  Company^^  be  against 
all  justice  that  the  whole  of  a  man's  testimony  should  be  struck  out 

M  B.  &  Ad.  (24  E.  C.  L.  R.)  193.     By  Parke,  Taunton,  and  Patteson,  Js. 

^  Although  a  party  calling  a  witness  shall  not  be  allowed  to  impeach  his 
general  character,  yet  he  may  show  that  he  has  told  a  different  story  at  another 
time:  CoivdeuY.  Reynolds^  12  S.  &  R.  281  ;  State  \ .  Karris  ^  1  Hay.  429;  Webster 
V.  Lee,  5  Mass.  334 ;  see  also  Broxon  v.  Bellows,  4  Pick.  179.  See  ante,  p.  244, 
note.  G. 


248         REBUTTING    THE    TESTIMONY    OF    WITNESSES. 

because  a  witness  sets  him  riglit  as  to  a  single  fact.  A  party  may 
■with  perfect  propriety  and  consistency  insist  on  the  general  compe- 
tency of  his  witness,  although  he  alleges  that  his  testimony  as  to  one 
particular  fact  is  erroneous.  It  may  be  urged  that  the  practice  may 
open  a  door  to  collusion,  and  that  a  jury  may  mistake  such  a  state- 
ment for  substantive  evidence.  The  suspicion  of  collusion  in  such  a 
case  is  at  most  but  weak,  when  it  is  considered  how  remote  would  be 
the  expectation  of  benefit  to  be  derived  from  it.  A  party  might,  no 
doubt,  by  such  means,  fraudulently  introduce  into  the  evidence  a 
r*24QT  former  statement  by  his  own  *witness  in  his  favor ;  but  it 
could  not  be  of  any  use,  unless  the  jury,  against  the  direction 
of  the  judge,  should  regard  it  as  substantive  evidence.  The  latter  ob- 
jection would  operate  with  equal  force  to  exclude  such  evidence,  when 
offered  to  impeach  the  adversary's  witness. 

It  has  been  truly  observed,  that  to  allow  the  evidence  of  a  party's 
own  witness  to  be  impeached  by  other  evidence  to  the  contrary,  is 
not  founded  on  any  principle  generally  warranting  such  an  impeach- 
ment of  credit  by  the  party  who  calls  the  witness,  for  the  witnesses 
are  not  called  directly  to  discredit  the  first  witness ;  the  impeachment 
of  his  discredit  is  incidental  and  consequential  only.  But  although 
the  practice  of  contradicting  by  other  evidence  may  supply  no  affirm- 
ative argument  for  contradiction  by  the  witness's  own  statement,  it 
is  observable  that  such  practice  shows  that  the  discrediting  of  the 
witness  is  not  a  consequence  which  ought  to  exclude  such  evidence 
as  the  justice  of  the  case  may  otherwise  require.  The  admission  of 
this  kind  of  evidence  seems  to  stand  upon  a  substantive  reasonable 
foundation.  For  such  a  course  is  in  the  abstract  essential  to  the 
forming  a  correct  estimate  of  the  respective  degrees  of  credit  due  to 
conflicting  witnesses ;  and  it  is  at  most  but  doubtful  whether  the  ex- 
clusion of  such  evidence  is  warranted  upon  any  collateral  grounds  of 
convenience.  In  the  case  of  Wright  v.  Beckett,^  Lord  Denman  having 
received  such  evidence,  the  case  was  argued  before  Lord  Denman  and 
Mr.  Baron  Bolland,  as  Judges  of  the  Court  of  Common  Pleas  at  Lan- 
caster ;  Lord  Denman  cited  the  case  of  Bernasconi  v.  Fairhrother^  in 
which  he  had  received  similar  evidence,  and  in  his  judgment  on  the 
principal  case  he  adhered  to  the  same  opinion.^  *Mr.  Baron 
*-  *"'*  -J    Bolland  was  of  opinion  that  the  evidence  was   inadmissible, 

'  1  M.  &  Rob.  427.  In  the  case  of  Ewer  v.  Ambrose,  3  B.  &  C.  (10  E.  C.  L.  R.) 
740,  cited  below,  Mr.  J.  Baylcy  seemed  to  be  of  opinion  (although  it  was  unneces- 
Bary  to  decide  the  point)  that  the  answer  in  Chancery  was  inadmissible  altogether. 
Ilolroyd  and  Jiittledale,  .Justices,  expressed  no  opinion. 

«  And  again  in  Dunn  v.  Aslelt,  2  M.  &  Rob.  122, 


PARTY    CONTRADICTING     HIS     OWN    WITNESS.  250 

and  Lord  Denman  stated  that  others  of  great  weight  and  authority 
agreed  with  Mr.  Baron  Bolland.  And  notwithstanding  the  reasons 
above  suggested,  the  prevailing  opinion  seems  to  be  that  a  party  who 
calls  a  witness  is  not  at  liberty  thus  to  impeach  his  credit  and  nullify 
his  testimony.  In  the  more  recent  case  of  IToldsworth  v.  The  Mayor 
of  Dartmouth,^  an  action  against  the  corporation  on  a  bond,  Avhich 
they  defended  on  the  ground  that  it  had  been  obtained  by  fraud,  the 
defendants  called  several  persons,  in  order  to  establish  this,  who  were 
members  of  the  corporation  at  the  time  the  bond  was  given,  and  took 
part  in  giving  it.  One  of  them  on  cross-examination  stated  that  the 
transaction  was,  as  far  as  he  knew,  honest  and  correct.  On  re-ex- 
amination he  denied  having  told  the  defendants'  attorney  that  it  was 
a  shameful  transaction,  whereupon  the  defendants'  counsel  proposed 
to  call  the  attorney  to  prove  that  he  had  said  so  ;  but  this  being  ob- 
jected to,  Parke,  B.,  rejected  the  evidence,  observing,  that  he  never 
had  any  doubt  that  Bolland,  B.,  was  right  in  the  case  above  cited, 
and  added,  that  a  party  has  no  right  to  put  a  witness  into  the  box 
as  a  witness  of  credit,  and  when  he  gives  unfavorable  evidence  to  call 
evidence  to  contradict  him,  and  that  it  made  no  difference  whether 
the  fiict  was  elicited  on  the  examination  in  chief  or  on  cross-examina- 
tion. In  Allay  v.  HuUliings^  also,  Wightman,  J.,  rejected  similar 
evidence ;  and  in  Wirdcr  v.  Butt}  Erskine,  J.,  ruled  the  same  way, 
observing  that  he  had  previously  done  so  on  one  occasion  with  the 
approbation  of  Patteson,  J,,  and  that  he  had  since  talked  with  seve- 
ral of  the  other  judges,  and  found  that  in  their  opinion  the  above- 
mentioned  decision  of  Parke,  B.,  was  right. 

It  is  observable,  that  the  case  of  a  witness  thus  giving  evidence  of 
a  fact  tending  to  negative  the  claim  made  by  *his  party  is  v-^iyr^w 
distinguishable  from  that  of  a  witness  who  denies  all  know- 
ledge of  the  fact,  or  simply  fails  in  proving  the  fact  which  he  is 
called  to  prove.  In  the  former,  it  may  be  essential  to  justice  that 
the  jury,  who  might  otherwise  attribute  too  much  credit  to  the  testi- 
mony of  the  witness,  should  be  supplied  with  the  means  to  enable 
them  to  judge  of  the  degree  of  credit  which  they  ought  to  give;  but 
in  the  latter,  the  witness  proving  nothing,  his  credit  is  immaterial, 
and  what  he  stated  upon  a  former  occasion  cannot  be  received  as 
substantive  evidence.''  Upon  the  trial  of  Warren  Hastings,  the 
judges  delivered  the  following  answer  by  the  Lord  Chief  Baron,  to  a 

•^  2  M.  &  Rob.  153.  '  2  M.  &  Rob.  358. 

J  2  M.  &  Rob.  357. 

■^  Eioer  V.  Amlrose,  3  B.  &  C.  (10  E.  C.  L.  R.)  74G. 


251       CONFIRMING    THE     TESTIMONY    OP    WITNESSES. 

question  proposed  by  the  House  of  Lords  : — *'  That  where  a  witness, 
produced  and  examined  in  a  criminal  proceeding  by  the  prosecutor, 
disclaimed  all  knowledge  of  any  matter  so  interrogated,  it  is  not  com- 
petent for  such  prosecutor  to  pursue  such  examination  by  proposing  a 
question  containing  the  particulars  of  an  answer  supposed  to  have 
been  made  by  such  witness  before  a  Committee  of  the  House  of  Com- 
mons, or  in  any  other  place,  and  by  demanding  of  him  whether  the 
particulars  so  suggested  were  not  the  answers  he  had  so  made." '  In 
the  case  of  Eiver  v.  Ambrose,^  a  witness,  called  by  the  defendant,  to 
prove  a  partnership  between  himself  and  the  defendant,  having  denied 
the  fact,  an  answer  of  the  witness  in  Chancery  was  offered  in  evidence 
by  the  defendant's  counsel,  and  admitted.  It  was  left  to  the  jury  to 
find  for  the  plaintiff  or  defendant,  according  to  the  credit  given  to 
witness's  answer  in  Chancery  or  in  court.  After  a  verdict  for  the 
defendant,  the  court  granted  a  new  trial,  on  the  ground  that  the  an- 
swer was  not  substantive  evidence  of  the  fact. 

[*252]     *y.    The  mode  of  confirming  the  testimony  of  ivifnesses. 

A  party  cannot  bring  evidence  to  confirm  the  character  of  a  wit- 
ness before  the  credit  of  that  witness  has  been  impeached,  either 
upon  cross-examination  or  by  the  testimony  of  other  witnesses ;"  but 
if  the  character  of  a  witness  has  been  impeached,  although  upon 
cross-examination  only,  evidence  on  the  other  side  may  be  given 
to  support  the  character  of  the  witness"  by  general  evidence  of  good 
conduct. 

Where  the  character  of  a  witness  is  impeached  by  general  evidence 
the  party  who  calls  him  is  at  liberty  to  examine  the  witnesses  as  to 
the  grounds  of  their  belief;  and  in  all  cases  where  the  credit  of  a 

'  Journ.  D.  P.,  Ap.  10,  1788.  The  witness  had  been  asked  by  the  managers 
for  the  Commons  whether  he  had  not  been  examined  before  a  Committee  of  the 
House  of  Commons,  and  whether  he  had  not  before  that  committee  given  a  par- 
ticular answer  to  a  particuhir  (juestion. 

'"AB.  &C.  (10  E.  C.  L.  R.)  746. 

°  Bishop  of  Durham  v.  Beaumont,  1  Camp.  207.  But  only  for  this  purpose  ; 
he  may  not  introduce  new  matter  for  other  purposes  than  explaining  the 
motives  or  statements  of  the  witnesses:  li.  v.  >S'/.  George,  9  C.  &  P.  (38  E.  C.  L. 
II.)  483 ;  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  297 ;  Prince  v.  Samo,  7  Ad.  & 
E.  (34  E.  C.  L.  R.)  r)27. 

"  li.  V.  Clarke,  2  Stark.  C.  (3  E.  C.  L.  R.)  241.  Where  the  prosecutrix,  upon 
an  indictment  for  an  attempt  to  commit  a  rape,  had  been  cross-examined  as  to 
her  having  been  sent  to  the  house  of  correction  on  0  charge  of  theft,  evidence 
of  her  subsequent  good  conduct  was  admitted  in  support  of  the  prosecution : 
Annesley  V .  Angleseu,  17  IIow.  St.  Tr.  1139. 


EVIDENCE    TO    CONFIRM.  252 

witness  has  been  attacked,  whether  by  general  evidence  or  by  par- 
ticular questions  put  upon  cross-examination,  it  seems  that  the  party 
who  called  him  is  at  liberty  to  support  his  testimony  by  general  evi- 
dence of  ffood  character. P  So  if  the  character  of  the  attestinor  wit- 
ness  to  a  deed  or  will  be  impeached  on  the  ground  of  fraud,  evidence 
of  his  general  good  character  is  admissible,'^  whether  he  be  living  or 
dead.  But  mere  contrariety  between  the  testimonies  of  adverse 
witnesses,  without  any  direct  imputation  of  fraud  on  the  part  of 
either,  supplies  no  ground  for  admitting  general  evidence  as  to  char- 
acter.'' ' 

*Where  an  attested  document  is  disputed  on  the  ground  r*9rq-] 
of  fraud,  and  one  of  the  attesting  witnesses  impeaches  the 
credit  of  the  other  attesting  witness,  general  evidence  may  be 
given  of  the  good  character  of  the  latter,  for  the  credit  due  to  their 
attestation  is  put  in  issue  by  the  evidence  on  the  other  side.^  It 
seems  to  be  the  better  opinion,  that  a  witness  cannot  be  confirmed 
by  proof  that  he  has  given  the  same  account  before,  even  although  it 
has  been  proved  that  he  has  given  a  different  account,  in  order  to 
impeach  his  veracity ;  for  his  mere  declaration  of  the  fact  is  not  evi- 
dence. His  having  given  a  contrary  account,  although  not  upon 
oath,  necessarily  impeaches  either  his  veracity  or  his  memory ;'  but 
his  having  asserted  the  same  thing  does  not  in  general  carry  his 
credibility  further  than,   nor  so  far  as,  his  oath."  ^     But  although 

P  See  R.  V.  Clarke,  2  Stark.  C.  (3  E.  C.  L.  R.)  241. 

•J  Doe  dein.  Walker  v.  Stephenson,  3  Esp.  C.  284 ;  Bishop  of  Durham  v.  Beau- 
mont, 1  Camp.  C.  210  ;  Doe  dem.  Stephenson  v.  Walker,  4  Esp.  C.  50 ;  Provis  v. 
Reed,  5  Bing.  (15  E.  C.  L.  R.)  435. 

"■  Bishoj)  of  Durham  v.  Beaumont,  1  Camp.  207. 

»  Doe  dem.  Walker  v.  Stephenson,  3  Esp.  C.  284 ;  4  Esp.  C.  50 ;  1  Camp.  210. 

*  But  evidence  of  declarations  by  a  deceased  attesting  witness  who  has  not 
been  examined  cannot  be  proved,  even  to  show  that  he  forged  the  document : 
Stohart  V.  Dryden,  1  M.  &  W.  615  ;  and  therefore,  of  coui-se,  witnesses  cannot  be 
called  to  support  his  character  on  that  score. 

"  B.  N.  P.  294.  Buller,  J.,  was  clearly  of  opinion  that  such  evidence  was 
not  admissible  to  support  an  unimpeached  witness,  and  doubted  whether  it  was 

^  It  seems  now  settled  that  whenever  the  character  of  a  witness  for  truth  is 
attacked  in  any  way,  whether  by  cross-examination  or  by  general  evidence  of 
want  of  character  for  truth,  or  by  proving  statements  made  by  him  out  of  court 
different  from  those  sworn  to,  it  is  competent  for  the  party  calling  him  to  give 
general  evidence  of  his  good  character:  Paine  v.  Tilden,  20  Vt.  554;  Hadjo  v. 
Gooden,  13  Ala.  718  ;  Siveet  v.  Sherman,  21  Vt.  23,  Contra,  Stamper  v.  Griffin, 
12Ga.  450,     See  mt^e,  p,  238,  note, 

^  When  a  witness  testifies  to  a  fact,  and  evidence  is  introduced  to  impeach  his 


253       CONFIRM  IXG    THE    TESTIMONY     OF    AVITNESSES. 

such  evidence  be  not  generally  admissible  in  confirmation  of  a  wit- 
ness, there  may  be  many  cases  where  under  special  circumstances  it 
possibly  might  be  admissible  ;  as,  for  instance,  in  contradiction  of 
evidence  tending  to  show  that  the  account  was  a  fabrication  of  late 
date,  and  where  consequently  it  becomes  material  to  show  that  the 
same  account  had  been  given  before  its  ultimate  effect  and  operation, 
r*9^d.'l  *^i'ising  from  a  change  of  circumstances,  could  have  been 
foreseen.  So,  where  an  immediate  account  is  given,  or  com- 
plaint made,  by  an  individual,  of  a  personal  injury  committed  against 
him,  the  fact  of  making  the  complaint  immediately,  and  before  it  is 
likely  that  anything  should  have  been  contrived  and  devised  for  the 
private  advantage  of  the  party,  is  sometimes  admissible  in  evidence  ; 
as  upon  an  indictment  for  a  rape,''  or  upon  an  action  for  a  trespass 
and  assault  committed  on  the  wife.^ 

Where  a  register  of  baptism  stated  the  child  to  be  seven  years  of 
age  at  the  time  of  baptism,  it  was  held  that  the  entry  was  no  evidence 
to  prove  the  age,  on  an  issue  to  try  whether  the  party  was  of  age 

evidence  in  reply  :  R.  v.  Parker,  3  Doug.  (26  E.  C.  L.  R.)  242.  In  the  case  of 
The  Berkeley  Peerage,  5th  June  1811,  Lord  Redesdale  held  that,  in  general, 
declarations  made  by  a  witness  at  another  time  could  not  be  examined  into  for  the 
purpose  of  supporting  his  testimony  ;  and  he  referred  to  a  case  where  Lord  C. 
J.  Eyre  rejected  such  evidence  when  offered  for  the  prisoner  in  a  case  of  perjury. 
On  the  other  hand,  see  Gilb.  Ev.  135  ;  Lutterely.  Raynell,  1  Mod.  282;  Friend's 
case,  4  St.  Tr.  613  ;  Harrisoii's  case,  12  How.  St.  Tr.  861. 

"  R.  V.  Clarke,  2  Stark.  C.  (3  E.  C.  L.  R.)  242;  Brazier's  case,  East's  P.  C. 
443.  Such  evidence  would  appear  to  be  properly  admissible  only  as  confirma- 
tory evidence  where  the  witness's  credit  is  impeached :  Reg.  v.  Megson,  9  C.  & 
P.  (38  E.  C.  L.  R.)  420 ;  R.  v.  Guttridge,  9  C.  &  P.  (38  E.  C,  L.  R.)  471 ;  R.  v. 
Walker,  2  M.  &  Rob.  212.  It  seldom,  hoAvever,  happens  that,  in  such  a  case  as 
that  of  rape,  an  attempt  is  not  made  to  impeach  the  credit  of  the  witness. 

"  Thompson  and  his  wife  v.  Trevanion,  Skinn.  402  ;  6  East  193  ;  and  see  Rex 
V.  Foster,  6  C.  &  P.  (25  E.  C.  L.  R.)  325. 

credit,  he  may  be  corroborated  by  evidence  of  what  he  had  testified  or  stated  on 
former  occasions:  Henderson  v.  Jones,  10  S.  &  R.  322;  Cooke  v.  Curtis,  6  Har. 
&  Johns.  8(5 ;  Coffin  v.  Anderson,  4  Blackf.  395  ;  Beauchamp  v.  State,  6  Ibid. 
300  ;  State  v.  George,  8  Ired.  324  ;  Dossett  v.  Miller,  3  Sneed  72.  Where  a  wit- 
ness is  discredited  by  testimony  against  his  general  character,  testimony  to  show 
that  he  has  formerly  made  the  same  statement  as  that  to  which  he  now  testifies 
is  not  admissible  :  Gihhs  v.  Linsley,  13  Vt.  208.  Contra,  State  v.  Dove,  10  Ired. 
469  ;  Pleasant  v.  State,  15  Ark.  624.  Proof  of  declaration  made  by  a  witness 
out  of  court,  in  corroboration  of  testimony  given  Ijy  him  on  the  trial  of  a  cause 
is,  as  an  almost  universal  rule,  inadmissible:  Robb  v.  i/r/cAVey,  23  Wend.  50 ; 
Dudley  v.  Bolles,  24  Ibid.  465  ;  Smith  v.  Stickney,  17  Barb.  489  ;  People  v.  Fin- 
negan,  1  Parker  C.  R.  147.     See  ante,  p.  238,  note. 


WRITTEN     EVIDENCE.  254 

when  he  was  arrested.  But  Bayley,  J.,  expressed  an  opinion,  that 
if  it  couhl  have  been  shown  that  the  entry  had  been  made  upon  the 
representation  of  the  mother,  who  was  called  as  a  witness  for  her 
son,  in  order  to  prove  his  minority,  the  fact  would  have  been  admis- 
sible to  support  her  testimony  upon  its  being  impeached." 

Unless  there  be  some  legislative  provision  to  the  contrary,  it  is  no 
objection  that  a  witness  called  to  support  the  appellant's  case  before 
a  court  of  appeal  was  not  examined  before  the  original  court,''  even 
although  the  party  who  obtained  the  conviction  is  not  liable  to  double 
costs  on  a  reversal  of  the  conviction. 


*CHAPTER  II.  [*255] 

WRITTEN   EVIDENCE. 

Written  Instruments  are,  firsts  of  a  public  nature;  secondly,  of 
a  mixed  nature,  partly  public  and  partly  private ;  tldrdly,  of  a  pri- 
vate nature.  Public  documents,*  *again,  are  either  judicial ;  r*of;pn 
or,  secondly,  not  judicial ;  and,  with  a  view  to  their  means 

^  Wihenv.  Law,  3  Stark.  C.  (3  E.  C.  L.  R.)  63. 

y  R.  V.  Commissioners  of  Appeals,  3  M.  &  S.  133  ;  Breedon  v.  Gill,  1  Ld.  Raym. 
219;  s.  c,  Salk.  555. 

*  The  statute  1  &  2  Vict.  c.  94,  provides  for  the  establishment  of  a  record 
office,  and  phices  under  the  superintendence  of  the  Master  of  the  Rolls  all  the 
older  general  records  of  the  realm.  Those  specifically  mentioned  in  the  Act  are 
the  records  then  deposited  in  the  Tower,  Chapter  House  of  Westminster,  Rolls 
Chapel,  Petty  Bag  Office,  the  OflSce  of  the  Queen's  Remembrancer,  Augmenta- 
tion Office,  First  Fruits  and  Tenths  Office,  Office  of  the  Land  Revenue  and  En- 
rolments, or  of  the  late  Auditor  of  the  Land  Revenues,  formerly  in  the  Office 
of  Pells,  and  then  in  the  custody  of  the  Comptroller  of  the  Exchequer ;  the 
records  of  the  Court  of  Chancery,  Exchequer,  Admiralty,  Queen's  Bench,  Com- 
mon Pleas  and  Marshalsea,  wherever  then  deposited,  and  all  the  records  of  the 
lately  abolished  Courts  of  the  Principality  of  Wales,  Palatinates  of  Chester  and 
Durham,  and  Isle  of  Ely.  The  Queen  is  empowered  in  Council  to  place  any 
other  records  under  the  same  superintendence ;  and  the  Master  of  the  Rolls  is 
to  appoint  persons  to  receive  and  take  charge  of  the  accumulating  records  of 
these  various  Courts,  from  time  to  time  after  they  are  twenty  years  old,  subject 
to  certain  regulations.  He  is  also  to  make  rules  for  the  admission  of  such 
persons  as  ought  to  be  admitted  to  the  use  of  such  records.  The  statute  author- 
izes him  or  the  deputy  keeper  to  allow  copies  to  be  made,  and  declares  it  to  be 
expedient  "  to  allow  the  free  use  of  any  public  records  as  far  as  stands  with 
their  safety  and  integrity,  and  with  the  public  policy  of  the  realm."     The 


256  DOCUMENTS     OF    A     PUBLIC     NATURE. 

of  proof ;  they  are  either,  first,  of  record;  or,  secondly,  not  of 
record.  We  will  proceed  to  consider  them  in  this  order,  and  to  treat 
not  only  of  their  admissibility  and  effect,  but  also  of  the  mode  in 
which  they  are  to  be  proved.^ 

I.  Documents  of  a  Public  Nature. 

Before  the  admissibility  and  effects  of  public  documents  are  con- 
sidered, it  will  be  convenient  to  consider  generally  the  means  by 
which  public  documents  are  to  be  procured"  and  proved." 

If  the  question  be  as  to  the  existence  or  contents  of  a  record  in 
the  same  court,  the  trial  is  by  inspection  of  the  record  itself.*^  Where 
the  disputed  record  is  one  of  another  court,  the  tenor  may  be  ob- 
j-^j^---,  tained  by  means  of  a  '^certiorari  and  mittimus  out  of  Chan- 
cery ;*  for  it  would  be  inconvenient  to  remove  the  original. 

principal  portion  of  these  records  are  at  present  kept  in  the  Stone  Tower  in 
Westminster  Hall,  in  the  Rolls  Chapel,  in  the  Carlton  Ride,  and  in  the  ToAver 
of  London.  An  order  of  the  court,  or  a  judge,  is  now  necessary  before  issuing 
a  subpoena  for  the  production  of  these  documents,  R.  G.  6  C.  B.  (GO  E.  C.  L. 
R. )  424;  but  the  original  can  now  rarely  be  necessary,  as  by  s.  13  a  certified 
copy  of  any  of  them,  sealed  with  the  seal  of  the  Record  OflBce,  is  evidence 
in  every  case  in  which  the  original  record  could  have  been  received.  See  the 
sections,  j3os^,  p.  262,  note  (/i). 

^  If  the  production  of  any  document  be  injurious  to  the  public  interest,  the 
production  or  even  the  inspection  of  it  will  not  be  granted.  The  principle 
which  privileges  persons  from  giving  parol  evidence  equally  applies  to  the  pro- 
duction of  written  instruments:  Home  v.  Bentiuck,  2  B.  &  B.  (6  E.  C.  L.  R.) 
130;  Smith  v.  East  India  Company,  1  Phil.  50;  Cooke  v.  Maxwell,  2  Stark.  C. 
(3  E.  C.  L.  R.)  183;  Wyatt  v.  Goi-e,  Holt  N.  P.  C.  (3  E.  C.  L.  R.)  299.  In 
E.  V.  Staffordshire,  Justices,  6  Ad.  &  E.  (33  E.  C.  L.  R.)  99,  the  court  con- 
sidered that  they  could  enforce  by  mandamus  the  production  of  any  document 
of  a  public  nature  in  which  any  subject  could  prove  himself  to  be  interested, 
and  that  any  officer  appointed  to  keep  records  ought  to  deem  himself  a  trustee 
for  such  a  person,  but  the  court  would  not  interfere,  unless  the  person  ap- 
plying had  such  an  interest.  There  are,  however,  some  records  which  are  open 
to  all,  thus  the  inspection  and  exemplification  of  the  records  of  the  Queen's 
Courts  are  of  right :  3  Co.,  preface,  and  stat.  40  Edw.  III.,  there  copied. 

*  See  tit.  Inspection  and  Public  Documents. 

^  Nul  tiel  record  was  pleaded  to  the  Composition  Act :  2  Salk.  56G.  Ilolt,  C. 
J.,  held  that  an  exoinplification  was  necessary,  altliough  a  copy  printed  by  the 
King's  printer  would  be  sufficient  evidence  before  a  jury:  Anon.,  2  Salk.  50G, 
infra  231.  The  record  or  document  itself  must  also,  it  has  been  thought,  be 
produced  in  case  of  forgery  or  perjury,  sed  quaere;  see  Forgery — Perjury — 
Record. 

"  Piil  V.  Kni(/ht,  1  Saund.  98;  llewson  v.  Broicn,  2  Burr.  1034;  Luttrell  v. 
Lea,  Cro.  Car.  297. 


I 


now     PROVED  —  EXEMPLIFICATIONS.  257 

Where  the  record  of  an  inferior  court  is  disputed  in  a  superior 
court,  the  record  itself,  where  it  is  necessary,  and  in  other  cases  the 
tenor,  may  be  removed  by  certiorari  out  of  Chancery,*^  or  out  of  the 
Queen's  Bench,  if  the  proof  is  needed  there. ^  In  criminal  cases, 
where  a  prisoner  pleads  auterfois  acquit,  he  may  remove  the  record 
by  certiorari,  if  he  be  arraigned  in  the  King's  Bench.''  In  other 
cases,  he  may  remove  the  tenor  of  the  record  of  acquittal  into  Chan- 
cery by  certiorari,  and  either  produce  it  in  court  witli  his  own  hands, 
[en poigne),  or  procure  it  to  be  sent  to  the  justices  sub  pede  sigilli.' 
But  the  record  in  such  case  must  be  removed  by  writ,  although  the 
justices  may  receive  a  record  without  writ,  where  it  is  to  be  proceeded 
on  for  the  King.-" 

A  record  may  be  proved  either  first,  by  mere  production,  without 
more ;  or,  secondly,  by  cop)y. 

Copies  of  records  are  either  exemplifications  ;  or,  secondly,  copies 
made  by  the  authorized  officer  ;  or,  thirdly,  sworn  copies. 

First.  Exemplifications.  These  are,  exemplifications  under  the 
great  seal  ;  or  under  the  seal  of  a  particular  court.''  The  reason  of 
admitting  a  copy  to  be  evidence  in  such  cases,  is  the  inconvenience 
to  the  public  of  removing  such  documents,  which  may  be  wanted  in 
two  places  at  the  same  time.'  A  record  to  be  exemplified  under  the 
great  seal  must  either  be  a  record  of  the  Court  *of  Chan-  rjco-cn 
eery,  which  is  the  centre  of  all  the  courts,  or  must  be  re-  ^ 
moved  thither  by  certiorari.'^  Nothing  but  records  can  be  given  in 
evidence  exemplified  under  the  great  seal,  for  these  are  presumed  to 
be  preserved  by  the  court  free  from  erasure  or  interlineation,  to 
which  private  deeds  which  are  in  the  hands  of  private  persons,  are 
subject."  Where  any  record  is  exemplified  the  Avhole  must  be  exem- 
plified, for  the  construction  must  be  gathered  from  the  whole  taken 
together. °     An   exemplification  under  the  broad  seal  is   of  itself  a 

^  Butcher  and  Aldivortli' s  case,  Cro.  Eliz.  821  ;  Guilliam  v.  Hardy,  1  Ld. 
Raym.  216. 

8  2  Atk.  317  ;  GuiUiam  v.  Hardy,  1  Ld.  Raym.  216. 

^  20  E.  2,  Coron.  242;  Stark.  Crim.  PI.  318.  The  usual  practice  is  for  the 
clerk  of  assize  or  of  the  peace  to  make  up  the  record,  and  produce  it  in  court 
without  writ:  see  1  Russ.  on  Crimes  829,  837. 

•  2  Hale  242 ;  2  E.  3,  26,  Coron.  150. 

J  2  Hale  242 ;  8  E.  4,  18,  B.  Coron.  218. 

*  Gilb.  Law  of  Ev.  12.  i  Bac.  Ab.  Ev.  F. 
■"  Bac.  Ab.  Ev.  F.  -,  B.  N.  P.  226  ;  3  Ins.  173 ;  10  Co.  93,  a. 

°  B.  N.  P.  227  ;  Bac.  Ab.  Ev.  F. ;  3  Ins.  173  ;  Gilb.  Law  of  Ev.  12. 
°  3  Ins.  174  ;  Gilb.  Law  of  Ev.  17.     But  this  rule  is  to  be  taken  with  some  re- 
striction 5  vide  B.  N.  P.  227. 


268  DOCUMENTS     OF    A     PUBLIC     NATURE. 

record  of  the  greatest  authenticity. p  And  where  an  exemplification 
of  a  commission  of  the  time  of  Elizabeth  was  produced  from  the 
proper  custody,  and  there  was  a  slip  of  parchment  at  the  foot,  cor- 
responding in  size  and  form  with  the  slips  on  which  the  great  seal  is 
usually  affixed,  the  court  allowed  it  to  be  read  as  a  complete  exem- 
plification.'^ 

As  to  exemplifications  under  the  seal  of  the  court.  The  seals  of 
the  King's  courts  of  justice  are  of  public  credit,  and  are  part  of  the 
constitution  of  the  courts,  and  supposed  to  be  known  to  all ;'  and 
this,  whether  the  court  has  existed  from  time  beyond  memory,  or  has 
been  recently  created  by  Act  of  Parliament.^  But  the  seals  of  pri- 
vate courts  and  persons  are  not  receivable  in  evidence,  unless  proved 
r*9'^Q1  *^  ^®  ^^®  seals  of  the  respective  courts  or  persons.'  *In 
general  the  exemplification  of  any  record  under  the  seal  of 
one  of  the  King's  courts  of  justice  is  sufficient."  So  is  an  exempli- 
fication of  a  commission  and  return  under  the  seal  of  the  Exchequer/ 
of  a  record  of  the  great  sessions  in  Wales,  or  in  a  county  palatine, 
under  the  seal  of  the  court."^  Or  of  the  proceedings  of  the  ecclesi- 
astical courts.^  So  is  an  exemplification  of  the  Pope's  bull,  under  the 
seal  of  a  bishop.^  Or  of  the  grant  of  administration  with  the  will 
annexed,  under  the  seal  of  the  archbishop.^     So  the  exemplification 

p  Gilb.  Law  of  Ev.  14 ;  Bac.  Ab.  Ev.  F. ;  Sid.  145 ;  Hard.  118  ;  Plowd.  Com. 
411. 

1  Beverley  v.  Craven,  2  M.  &  Rob.  140. 

"•  Gilb.  Law  of  Ev.  17,  20  ;  10  Co.  93,  a. 

°  Sid.  2,  146  ;  Gilb.  Law  of  Ev.  20.  The  courts  are  directed  to  take  judicial 
notice  of  the  Seal  of  the  Record  Office,  1  &  2  Vict.  c.  94,  s.  13  ;  and  Common 
Law  Seal,  and  Seal  of  the  Enrolment  Office  in  Chancery,  12  &  13  Vict.  c.  109  ; 
and  copies  under  those  seals  may,  to  a  certain  extent,  be  regarded  as  exemplifi- 
cations.    The  sections  are  given  at  length,  post,  pp.  262,  note  [n],  263,  notes 

'  Gilb.  Law  of  Ev.  20  ;  and  therefore,  formerly,  it  seems  to  have  been  the  prac- 
tice to  deliver  an  exemplification  under  the  seal  of  a  court  to  a  jury,  but  not  to 
deliver  a  document  under  a  private  seal,  because  the  authenticity  of  the  latter 
depended  upon  a  collateral  oath:  Gilb.  Law  of  Ev.  17,  18,  19.  The  common 
seal  of  the  city  of  London  proves  itself:  Doe  dem.  Woodmas  v.  Mason,  1  Esp. 
53  ;  Olive  v.  Givyn,  2  Siderf.  145  ;  s.  c,  Ilardres  118  ;  sed  vide  Moises  v.  Thorn- 
ton, 8  T.  R.  303. 

"  10  Co.  93,  a. 

'  Tooker  v.  The  Duke  of  Beaufort,  Say.  297. 

"  Ibid.  ;  Hard.  120. 

»  1  Ford's  MSS.  1G6.  y  Hard.  118. 

•  Kanjdon  v.  Cross,  8  G.  2,  B.  R.  IL  108,  although  it  merely  recites  the  fact; 
Shepherd  v.  Shor/hose,  1  Str.  412. 


HOW     PROVED  —  EXEMPLIFICATIONS.  259 

of  the  enrolment  of  a  fine  or  recovery  in  Wales,  or  in  the  counties 
palatine,  under  the  appropriate  judicial  seal,  is  evidence  of  such  fine 
or  recovery. "^  But  the  mere  production  of  an  exemplification  under 
the  seal  of  an  university  is  not  evidence,  without  proof  that  a  party 
is  entitled  to  his  degree  ;•"  neither  is  the  exemplification  of  the  judg- 
ment or  decree  of  any  foreign  court  admissible  without  proof  of  the 
seal  of  the  court.*  And  if  a  foreign  court  has  an  official  seal,  it 
ought  to  be  used  for  the  purpose  of  authenticating  its  judgments; 
and  no  copy  by  any  officer  of  the  court  will  be  considered  as  of  au- 
thority in  this  country.*^  ^ 

'  By  the  stat.  27  Eliz.  c.  9,  s.  8,  they  are  of  as  great  force  as  the  record  :  Olive 
V.  Gimjn,  2  Sid.  145. 

*'  Henri/  v.  Adei/,  3  East  221  ;  vide  infra,  Judgments,  proof  of. 

"  Moises  V.  Thornton,  8  T.  R.  303. 

**  Black  V.  Lord  Brayhrooke,  2  Stark.  C.  (3  E.  C.  L.  R.)  7 ;  and  Aj^pleton  v. 
Lord  Brayhrooke,  Ibid. ;  Anon.,  9  Mod.  66. 

^  "  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records 
and  judicial  proceedings  of  every  other  State.  And  the  Congress  may,  by 
general  laws,  prescribe  the  manner  in  vrhich  such  acts,  records,  and  proceedings 
shall  be  proved  and  the  effect  thereof;"  Const.  U.  S.,  Art.  IV.,  Sect.  1.  The 
Statute  of  the  United  States,  passed  May  26th  1790,  provides,  "that  the  records 
and  judicial  proceedings  of  the  courts  of  any  State  shall  be  proved  or  admitted  in 
any  other  court  within  the  United  States,  by  the  attestation  of  the  clerk  and 
the  seal  of  the  court  annexed,  if  there  be  a  seal,  together  with  a  certificate  of 
the  judge,  chief  justice,  or  presiding  magistrate,  as  the  case  may  be,  that  the 
said  attestation  is  in  due  form.  And  the  said  records  and  judicial  proceedings, 
authenticated  as  aforesaid,  shall  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States,  as  they  have  by  law  or  usage  in  the  courts 
of  the  State  from  whence  the  said  records  are  or  shall  be  taken."  By  the 
second  section  of  a  supplementary  statute,  passed  March  27th  1804,  all  the 
provisions  of  the  statute  of  1790  are  made  to  apply  as  well  to  the  public  acts, 
records,  judicial  proceedings  and  courts  of  the  respective  territories  of  the 
United  States,  and  countries  subject  to  the  jurisdiction  of  the  United  States,  as 
to  the  public  acts,  &c.,  of  the  several  States."  Under  this  section  of  the  Con- 
stitution and  the  statute  of  1790,  the  judgment  of  a  State  court  has  the  same 
credit,  validity  and  effect  in  every  other  court  in  the  United  States  which  it  has 
in  the  State  where  it  is  pronounced  :  if  in  the  courts  of  such  State  it  has  the 
faith  and  credit  of  record  evidence,  it  must  have  the  same  faith  and  credit  in 
every  other  court :  Mills  v.  Duryee,  7  Cranch  481;  Hamjjfon  v.  McConuell,  3 
Wheat.  234;  and  note  by  the  reporter.  Whether  a  will  of  lands  duly  proved 
and  recorded  in  one  State,  so  as  to  be  evidence  in  the  courts  of  that  State,  is 
thereby  rendered  evidence  in  the  courts  of  another  State  (provided  the  record 
on  its  face  shows  that  it  possesses  all  the  solemnities  required  by  the  laws  of 
the  State  where  the  land  lies),  under  this  section  of  the  Constitution,  Quaere, 
Darby's  Lessee  v.  Meyer,  et  al.,  10  Wheat.  409. 

The  above  provision  in  the  Constitution  has  no  effect  upon  judgments  in 
16 


260  DOCUMENTS     OF    A     PUBLIC     NATURE. 

r*or'ni        ^Secondly.   Copies  made  by  an  authorized  officer.     Where 
the    law   intrusts   a    particuhir    officer   with   the   making  of 

criminal  prosecutions,  but  only  on  judgments  in  civil  actions:  such  judgments 
only  were  intended  to  be  affected  by  this  provision  as  can  be  carried  into  effect 
by  the  aid  of  the  courts  of  States  in  which  they  were  not  rendered — but 
fugitives  from  justice  found  in  one  State  cannot  be  directly  nor  collaterally 
affected  by  any  judgment  against  them  in  the  State  from  which  they  have  fled  : 
Comm.  V.  Green,  17  Mass.  546. 

Under  the  statute  of  1790,   the   Supreme   Court  of  the   United   States  have 
decided  that  a  copy  certified  by  the  clerk,  without  a  certificate  of  the  presiding 
judge  that  the  attestation  is  in  due  form,   is  not  admissible  in  evidence  in  the 
courts  of  another  State  or  District,  &c.  :  Drummoncl's  Admrs.  v.  Magruder  & 
Co.''s  Trustees,  9  Cranch  122.      It  had  been  previously  held,  in  Pennsylvania, 
that  a  copy  not  certified   according  to   the   statute  was  prima  facie  evidence, 
though  not  conclusive  :  Baker  et  al.  v.  Field,   2  Yeates   532.      And   in   North 
Carolina,   that  the  statute  was   only  afiirmative,   and   did  not  abolish   former 
modes  of  authentication  :  Ellmore  v.   Mills,   1   Ilayw.   359.      If  the  clerk  of  a 
court  certify  at  the  foot  of  a  paper  purporting  to  be  a  record,  "  that  the  forego- 
ing is  truly  taken  from  the  record  of  the  proceedings  of  his  court,"  and  if  the 
judge,  chief  justice,  or  presiding  magistrate  certify  that  such  attestation  of  the 
clerk  is  in  due  form  of  law,  it  is  to  be  presumed  that  the  paper  so  certified  is  a 
full  copy  of  all  the  proceedings  in  the  case,  and  it  is  admissible  in  evidence : 
Ferguson  v.  Harwood,  7  Cranch  408.     AUter,  if  the  writings  do  not  purport  to 
be  a  record,   but  a  mere  transci-ipt  of  minutes  from  the  docket  of  the  court. 
Ibid.     A  record  of  another  State  informally  certified  cannot  be  read,  even  on  a 
question  of  discharging  on  common  bail :    Craig  v.  Brown,   1    Pet.   C.   C.   35/. 
And  to  make  a  record  of  a  court  of  one  State  evidence  in  another,  the  attesta- 
tion must  be  according  to  the   form   used   in   the    State  from  which  the  record 
comes ;  and  the  only  evidence  of  this  fact  is  the  certificate  of  the  presiding 
judge  of  that  court:    Ibid.      See  also  Smith  v.  Blagge,  1  Johns.  Cas.  238.      A 
certificate  of  a  presiding  judge,  stating  that  the   person  whose  name  is  signed 
to  the  attestation  of  the  record  is  clerk,   and   that   the   signature  is  his   hand- 
writing,  is  not  in  conformity  with  the  requirements  of  the  statute  :    Craig  v. 
Broicn,  idn  sup.    Whenever  the  court  whose  record  is  certified  has  no  seal,  this 
fact  should  appear,  either  in  the  certificate  of  the  clerk  or  in  that  of  the  judge : 
per  Washington,. J.    Ibid.  See  also  ^Zstoji  v.  T'ci^or,  1  Ilayw.  395.  The  attestation 
by  the  clerk,  of  the  record  of  a  judgment  in  another  State,  must  have  the  seal 
of  the  court  annexed  to  it,  and  it  is  not  sufficient  that  such  seal  is   annexed  to 
the  certificate  of  the  judge:    Ihmier  v.    Waddington,   C.   C.  Oct.   1811,   3IS. 
Wharton's  Digest  224.      A  record  of  another  State,  attested  by  the  clerk,  with 
the  seal  of  the  court  annexed  and  the  certificate  of  two  judges,  stating  it  to  \>i 
in  due  form,  one  of  them  stating  himself  to  be  the  judge  "  that  presided,  and 
one  of  the  judges  of  the  superior  courts  of  law  of  said  State,"  and  the  other 
stating  himself  to  be  "the  senior  judge  of  the  court  of  law  of  said  State,"  was 
held  in  Kentucky  to  be  an  insufficient  authentication  :   Stephenson  v.  Bannister, 
3  Bibb.  309.      In  those  States  where  a  justice  of  the  peace  holds  a  court  of 
record — where  he  is  the  sole  justice  and  has  no  clerk — he  may  certify  that  he 
is  the  presiding  magistrate  and  clerk  of  the  court,  that  there  is  no  seal,  and 


HOW    PROVED  —  EXEMPLIFICATIONS.  260 

copies,  it  iilso  gives  credit  to  them  in  evidence  witliout  further  proof, 
although  a  mere   office   copy  by  a  person   not   so   licensed   is   inad- 

that  the  attestation  is  in  the  usual  form  •,  and  a  copy  of  the  record  thus  certified 
would  be  admissible  in  evidence.  But  a  copy  of  a  record  of  a  judgment  ren- 
dered by  a  justice  in  another  State,  authenticated  only  by  his  certificate,  stating 
that  it  is  a  true  copy  of  the  files  and  records  remaining  in  his  office,  is  not  suf- 
ficiently proved  either  at  common  law  or  according  to  the  statute  of  the  United 
States  :  BisseJl  v.  Edwards^  5  Day  363.  A  decree  in  chancery  must  ])e  authen- 
ticated according  to  the  statute  of  1790:  Barbour  \.  TF?/<^s,  2  Marsh.  293.  A 
record  of  a  court  of  the  United  States  is  not  within  the  above-mentioned  statute, 
and,  if  under  the  seal  of  the  court  and  certified  by  the  clerk  as  a  copy,  it  is 
evidence  in  the  State  courts :  Pepoon  v.  Jenkins,  2  Johns.  Cas.  119.  So,  the 
record  of  a  court  of  a  territory  was  held,  in  Kentucky,  not  to  be  within  the  pro- 
vision of  the  Constitution  and  the  statute,  and  the  record  of  such  court  attested 
by  the  clerk,  with  the  seal  of  the  court,  together  with  the  certificate  of  the 
Governor  and  the  great  seal  that  the  person  attesting  was  clerk,  and  that  his 
attestation  was  in  due  form,  was  decided  to  be  sufiBciently  authenticated : 
Ilaggin  v.  Squire,  2  Bibb.  334.  See  The  statute  of  March  27th  1804,  above 
stated.  M. 

As  to  exemplification  of  foreign  judgments  it  has  been  held  that  where  the 
court  has  no  seal,  the  certificate  of  the  clerk,  accompanied  with  proof  of  his 
handwriting,  and  that  it  is  authenticated  in  the  usual  form,  is  suflicient :  Packard 
V.  Hill,  7  Cow.  434 ;  Torbert  v.  Wilson,  1  Stew.  &  Port,  200 ;  Craig  v.  Brown, 
Pet.  C.  C.  352 ;  Allen  v.  Thaxter,  1  Blackf.  399  ;  Butirich  v.  Allen,  8  Mass.  273. 
The  record  of  condemnation  of  a  vessel  in  a  foreign  Court  of  Vice- Admiralty  is 
not  evidence  x>er  se.  The  seal  must  be  proved  by  a  witness  who  knows  it,  or  the 
handwriting  of  the  judge  or  clerk  must  be  proved,  or  it  must  be  shown  that  it 
is  an  examined  copy.  The  consular  certificate  is  not  suflicient  to  authenticate 
it:  Carlett  v.  Ins.  Co.,  Paine  594.  On  the  other  hand  it  has  been  held  in  Con- 
necticut that  the  record  of  a  foreign  Vice- Admiralty  Court,  purporting  to  be 
certified  by  the  deputy-registrar,  under  the  seal  of  the  court,  is  admissible  with- 
out any  other  proof  of  its  authenticity  :  Thompson  v.  Steioart,  3  Conn.  171.  A 
judicial  record,  authenticated  only  by  the  great  seal  of  a  foreign  sovereign  state, 
is  evidence  in  our  courts,  although  it  is  not  accompanied  by  any  certificate  of 
its  being  a  copy  of  an  original  record,  under  the  ofiicial  signature  of  any  officer 
of  the  court :  Gristvold  v.  Pitcairn,  2  Conn.  85.  The  proceedings  of  a  A^ice- 
Admiralty  Court  of  a  foreign  nation  were  held  to  be  sufficiently  verified,  by 
proof  of  the  handwriting  of  the  judge  and  of  the  registrar  of  the  court  to  a 
certificate  that  the  papers  were  a  true  copy  from  the  records  :  Mumford  v.  Boivne, 
Anth.  40. 

The  public  seal  of  a  State,  affixed  to  the  exemplification  of  a  law,  proves  itself; 
it  is  a  matter  of  notoriety,  and  will  be  taken  notice  of,  as  part  of  the  law  of 
nations  acknowledged  by  all  :  Robinson  v.  Oilman,  7  Shep.  299.  Courts  of  the 
United  States  are  domestic  triljunals,  whose  proceedings  State  courts  are  bound 
to  respect  and  receive  when  exemplified  under  the  seal  of  the  court,  which  the 
State  courts  are  presumed  to  know  :  and  the  same  rule  applies  to  a  United  States 
court  established  in  a  territory  :  Wernock  v.  Dearman,  7  Port.  513  ;  Redman  v. 
Gould,  7  Blackf.  361  ;    Williams  v.  Wilkes,  2  Harris  228.     A  record  of  a  State 


260  DOCUMENTS     OF    A     PUBLIC     NATURE. 

missible.® '  The  chirograph  of  a  fine  is  evidence  of  the  fine  itself, 
because  the  chirographer  is  an  officer  appointed  by  the  law  to  make 

«  Bac.  Ab.  Ev.  F. ;  B.  N.  P.  229. 

court,  certified  by  the  clerk  under  its  seal,  beinjz;  good  evidence  in  another  court 
of  the  same  State,  is  also  admissible  in  the  United  States  courts  in  that  State : 
Mewster  v.  Spalding,  6  McLean  24. 

The  best  proofs  of  the  proceedings  of  a  foreign  court,  are  the  original  records  ; 
but  the  testimony  usually  produced  is  either  a  sworn  copy,  by  one  who  has  com- 
pared it  with  the  original  proceedings  or  an  exemplified  copy,  certified  by  the 
clerk  and  the  presiding  judge,  and  the  seal  of  the  court  with  the  broad  seal  of 
the  province  or  kingdom  of  the  appointment  of  the  judge,  with  the  proper  cer- 
tificate from  the  ofiice  of  appointment ;  either  of  these  will  be  sufficient :  Spauld- 
iiKj  V.  Vincent,  24  Vt.  501 ;  Steioard  v.  Swanzy,  23  Miss.  502.  When  a  copy  of 
a  judgment  recovered  in  Canada,  was  certified  by  the  clerk,  and  purported  to  be 
under  the  seal  of  the  court,  and  a  witness  testified  that  he  knew  the  clerk  in 
that  capacity  and  helped  him  to  compare  the  copy  with  the  original  and  knew 
it  to  be  correct  and  knew  the  seal  of  the  court,  it  was  held  sufiicient :  Pickard  v. 
Bailet/,  6  Fost.  152. 

As  to  exemplifications  of  judgments  and  other  records  under  the  Acts  of 
Congress  it  has  been  held  sufficient  that  the  presiding  judge  should  certify  that 
the  clerk  was  such  at  the  date  of  the  certificate :  Merriweather  v.  Garven,  2  Port. 
199;  Johnson  v.  Howe,  2  Stew.  27.  The  certificate  of  the  presiding  judge  is 
sufficient  evidence  of  the  fact  that  he  holds  that  position  :  Hutchinson  v.  Patrick, 
3  Mo.  45.  The  Act  of  Congress,  prescribing  the  mode  of  authenticating  the 
Acts  of  the  several  Legislatures,  declares  that  such  Acts  shall  be  authenticated 
by  having  the  seal  of  their  respective  States  affixed  thereto.  An  Act  certified 
by  the  Secretary  of  State,  to  which  is  appended  a  certificate  of  the  Governor 
with  the  seal  of  the  State  affixed,  certifying  to  the  ofAcial  character  of  the  person 
signing  himself  as  Secretary,  and  that  full  faith  and  credit  are  to  be  given  to 
his  official  acts,  is  not  a  compliance  with  the  Act  of  Congress  :  La  Fayette  Bank 
V.  Stone,  1  Scam.  424.     Where  one  State  court  is  abolished  and  its  jurisdiction 

'  Where  copies  are  made  evidence  by  statute,  the  mode  of  authentication  must 
be  strictly  pursued.  The  copy  may  be  strictly  accurate,  yet  if  the  certificate  be 
defective,  it  is  of  no  avail :  Smith  v.  United  States,  5  Peters  292.  A  copy  is 
not  admissible  upon  the  certificate  of  the  officer  having  the  custody  of  the  docu- 
ment unless  the  law  authorizes  him  to  certify  copies :  Strother  v.  Christy,  2  Mo. 
148  ;  State  v.  Cake,  4  Zabriskie  674.  If  the  law  does  not  authorize  an  instru- 
m-ent  to  be  recorded,  a  certified  copy  will  not  be  admissible :  Caale  v.  Harrington, 
7  liar.  &  Johns.  147  ;  JIaile  v.  Palmer,  5  Mo.  403  ;  Webster  v.  Harris,  16  Ohio 
49iJ ;  New  York  Dry  Dock  v.  Hicks,  5  McLean  111.  A  deed  proved  in  1803 
before  the  Mayor  of  Wilmington,  Delaware,  and  certified  under  the  corporate 
seal  of  the  city,  is  admissible  in  evidence  without  proof  of  the  identity  of  the 
impression:  DuJJ'eyw  The  Congregation,  12  Wright  46. 

The  Acts  of  Congress,  making  transcripts  from  the  departments  at  AYashingtnn 
evidenci;  against  public  debtors  are  valid,  but  the  mode  of  authentication  must 
be  strictly  pursued :  L'uilcd  States  v.  Harrill,  1  McAU.  C.  C.  243, 


HOW     PROVED EXEiMPLIFICATIONS.  260 

out  such  copies;  but   the  chirograph  is  not  evidence  of  the  levying 
of  a  fine  with  proclamations,  as  the  officer  is  not  appointed  to  make 

is  transferred  to  another  court,  the  clerk  and  presiding  judge  of  the  latter  court 
are  coniyjetent  to  authenticate  the  records  of  the  former  in  the  manner  pre- 
scribed by  the  Act  of  Congress  so  as  to  make  them  admissible  in  evidence  in  the 
courts  of  another  State :  Capen  v.  Emery,  5  Mete.  436.  The  oflBce  copy  of  a 
deed  in  another  State  is  such  a  record  as  must  be  authenticated  under  the  Act 
of  Congress,  to  make  it  evidence  :  Fennel  v.  Wei/ant,  tl  Ilarring.  502.  A  certifi- 
cate of  a  clerk  of  the  court  of  another  State,  under  his  private  seal,  if  he  certi- 
fies that  there  is  no  seal  of  the  court,  and  the  presiding  judge  certifies  that  the 
certificate  is  in  due  form,  is  good  :  Strode  v.  Churchill,  2  Litt.  75.  A  court  is 
not  prohibited  from  receiving  a  record,  although  not  certified  according  to  the 
Act  of  Congress,  if  proved  as  a  foreign  record  :  Lathrop  v.  Blake,  3  Barr  483  ; 
Duvall  V.  Ellis,  13  Mo.  203  ;  Settle  v.  Allison,  8  Ga.  201.  Any  State  may  pre- 
scribe rules  for  the  authentication  of  judicial  records,  in  order  to  make  them 
admissible  in  evidence,  provided  such  rules  are  not  inconsistent  with  the  Acts 
of  Congress  on  this  subject,  and  a  record  is  admissible  which  conforms  to  the 
provisions  of  the  Acts  either  of  Congress  or  of  the  Legislature  of  the  State  in 
which  the  record  is  sought  to  be  used  in  evidence :  Ordway  v.  Canroe,  4  Wis. 
45;  Kinijman  \.  Cowler,  103  Mass.  283.  To  let  in  the  exemplification  of  the 
probate  of  a  will  in  the  courts  of  Alabama,  under  the  Act  of  Congress,  no  par- 
ticular form  of  certificate  is  necessary.  If  the  record  is  attested  by  the  clerk, 
and  his  attestation  is  certified  by  the  presiding  judge  to  be  in  due  form,  it  is 
immaterial  how  the  attestation  is  made:  White  v.  Stother,  11  Ala.  720.  A 
document  attested  by  the  clerk  of  a  court  with  its  seal,  and  the  certificate  of  its 
presiding  judge  and  called  an  "exemplified  copy"  is  competent  evidence  of  the 
judgment  described  in  it  under  the  Act  of  Congress,  though  it  may  not  conform 
to  the  mode  of  common  law  or  in  the  State  where  the  judgment  was  rendered  : 
Taylor  v.  Carpenter,  2  Woodb.  &  Min.  1.  The  certificate  to  the  record  of  a 
judgment  rendered  in  one  State  to  be  used  in  another,  by  the  first  justice,  is 
not  sufficient  under  the  Act  of  Congress,  unless  it  appear  that  the  first  justice 
is  the  chief  justice  or  presiding  magistrate:  Hudson  v.  Dailey,  13  Ala.  722; 
Stewart  v.  Gray,  1  Hemps.  94.  The  certificate  of  a  justice  of  the  peace  of  a 
sister  State,  that  one  who  attests  a  copy  of  a  deed  recorded  in  that  State  is 
clerk,  is  not  such  authentication  as  will  authorize  the  reading  of  the  copy  in 
evidence.  It  is  necessary  that  the  certificate  be  by  the  judge,  chief  justice  or 
presiding  magistrate  of  the  court:  Waller  v.  Cralle,  9  B.  Monr.  11.  A  copy 
certified  by  a  surrogate  who  acted  as  his  own  clerk,  under  his  official  seal,  but 
without  his  certificate  that  the  attestation  is  in  due  form,  held  not  admissible  in 
evidence:  Catlin  v.  Uriderhill,  4  McLean  199;  but  with  such  attestation  it  is 
sufficient:  State  v.  Ilinchman,  3  Cas.  479.  The  record  and  judicial  proceedings 
of  a  county  court  in  Virginia  were  certified  by  a  person  who  styled  himself  pre- 
siding magistrate  of  the  county,  held  inadmissible,  since  it  did  not  appear  that 
he  was  presiding  magistrate  of  the  court :  Settle  v.  Allison,  8  Ga.  201.  The  cer- 
tifipate  of  a  judge  to  the  exemplification  of  a  record  of  another  State,  that  the 
attestation  of  a  clerk  is  in  due  form  is  sufficient,  though  he  may  not  certify 
directly  to  the  official  character  of  the  clerk  :  Linch  v.  McLemore,  15  Ala.  632. 
The  record  is  not  duly  authenticated  without  a  certificate  that  the  attestation 


260  DOCUMENTS     OF    A     PUBLIC     NATURE. 

copies  of  them/  So  a  copy  of  a  judgment  made  out,  examined, 
and  indorsed  by  the  clerk  of  the  court,  is  not  in  itself  evidence,  for 

f  B.  N.  P.  229,  230 ;  Bl.  Com.  409,  b  ;  Com.  Dijr.  Ev.  A.  (2)  ;  Chettle  v.  Pound, 
Trin.  Ass.  1700;  Bac.  Ab.  Ev.  F.  ;  Doe  v.  Bluck,  6  Taunt.  (1  E.  C.  L.  R.)  486. 
But  now,. by  11  &  12  Vict.  c.  70,  all  fines  are  to  be  conclusively  deemed  to  have 
been  levied  with  proclamations,  unless  in  the  case  of  lands  held  at  the  passage 
of  the  Act  under  a  title  adverse  to,  or  inconsistent  with,  the  operation  of  the 
fine,  in  which  case  it  is  incumbent  on  the  party  alleging  the  fine  to  have  been 
levied  with  proclamations  to  prove  it. 

of  the  clerk  is  in  due  form  :  Trigg  v.  Conivai/,  1  Hemps.  538  ;  Wilburn  v.  Hall, 
16  Mo.  426  ;  Thompson  v.  Mam-ow,  1  Cal.  428  ;  Shown  v.  Barr,  11  Ired.  296. 
The  form  of  the  certificate  attesting  the  judgment  of  a  court  of  another  State 
depends  on  the  usage  of  the  State  whence  the  record  comes ;  and  if  the  judge 
certifies  that  it  is  in  due  form,  this  will  be  sufiicient  without  setting  out  the 
form  :  Began  v.  McCormick,  4  Harring.  435  ;  Leicis  v.  Suilijf,  2  Green  186  ; 
Schoonmaker  v.  Lloyd,  9  Rich.  (Law)  173.  Where  the  judge  is  described  as 
judge  of  the  court,  without  saying  that  he  is  the  judge  or  the  sole  judge,  where 
there  is  nothing  on  the  face  of  the  record  produced  to  show  that  the  court  is 
composed  of  more  than  one  judge,  the  authentication  is  sufficient :  Central  Bank 
V.  Veasey,  14  Ark.  672.  As  to  the  judgments  of  justices  of  the  peace  it  has 
been  decided  that  they  are  admissible  if  authenticated  in  the  same  manner  as 
foreign  judgments  ai*e  authenticated:  Mahurin  v.  Bickford,  6  N.  H.  567; 
Lawrence  v.  GauUney,  1  Cheves  7  ;  Gay  v.  Lloyd,  1  Iowa  78.  An  exemplifica- 
tion of  the  record  of  a  judgment  of  a  justice  of  the  peace  of  a  sister  State,  certi- 
fied according  to  the  Act  of  Congress,  is  competent  evidence  in  Kentucky  :  Scott 
v.  Cleveland,  3  Menr.  62  ;  Railroad  Bank  v.  Evans,  32  Iowa  202.  The  mode  of 
authenticating  the  laws  and  records  of  the  diS'eren':.  States,  prescribed  by  the 
laws  of  the  United  States,  does  not  exclude  the  common  law  method  of  proving 
such  documents:  Karr  v.  Jackson,  28  Mo.  316  ;  Goodwyn  v.  Goodwyn,  25  Ga. 
203.  A  record  certified  under  the  seal  of  a  court  is  evidence  that  it  is  a  court 
of  record  :  Smith  v.  Redden,  5  Ilarring.  146.  A  substantial  compliance  with 
the  Act  of  Congress  is  sufficient  in  the  certificate  of  the  presiding  judge  to  a 
transcript  of  a  judgment  rendered  by  a  court  of  another  State:  Thrasher  v. 
Ingram,  32  Ala.  645 ;  Pratt  v.  King,  1  Oreg.  49.  The  decree  of  a  Court  of 
Chancery  is  within  the  Constitution  and  Act  of  Congress  respecting  the  mode  of 
authentication  and  the  effect  of  the  record  in  other  States  :  Patrick  v.  Gihhs,  17 
Tex.  275.  The  proceedings  of  the  courts  of  probate  are  judicial  proceedings 
and  may  be  authenticated  under  the  Acts  of  Congress :  House  v.  House,  16  Tex. 
598  ;  Washahaugh  v.  Entriken,  10  Cas.  74  ;  Spencer  v.  Langdon,  21  111.  192.  A 
transcript  of  a  justice's  record,  merely  certified  by  him,  is  not  evidence  unless 
made  so  by  statute :  Magee  v.  Scott,  8  Cas.  539.  An  attestation  by  a  deputy 
clerk  is  not  sufficient  within  the  Act  of  Congress :  Morris  v.  Patchin,  24  N.  Y. 
394.  Contra,  Stcdmnn  v.  Patchin,  34  Barb.  218.  A  state  may  well  enact  that 
less  proof  of  pul)lic  records  than  is  required  by  Act  of  Congress  shall  be  suffi- 
cient: Parke  v.  Williams,  7  Cal.  247. 

See  further  as  to  authentication  of  records,  English  v.  Smith,  26  Ind.  445  ; 
Winters  v.  Laird,  27  Tex.  616;   Shenvood  v.  Houston,  41  Miss.  59  ;  Eberts  v. 


HOW     PROVED  —  EXEMPLIFICATIONS.  260 

lie  is  intrusted  as  to  the  keeping  only  of  records,  and  not  with  the 
making  out  copies  of  them.^  So  where  a  deed  enrolled  is  lost,  a  copy 
of  the  enrolment  by  the  clerk  of  the  peace  is  not  admissible  in  evi- 
dence, for  he  is  empowered  merely  to  authenticate  the  deed  itself  by 
enrolment,  and  not  to  make  out  copies  of  the  enrolment.''  So  an  entry 
in  a  book  of  the  First  Fruits  Office,  of  the  collation  and  admission  of 
a  parson  to  a  rectory,  is  secondary  evidence  of  a  return  made  by  the 
bishop  to  a  writ  issued  by  the  Court  of  Exchequer  to  the  bishop  to 
ascertain  the  value  of  the  first  fruits  and  twentieths,  the  bishop  having 
discharged  a  public  duty  in  making  the  return,  and  faith  being  given 
that  he  would  perform  that  duty  correctly.'  The  endorsement  of  the 
date  of  enrolment  *is  conclusive  evidence  of  the  enrolment,  ^  ^^  ^ 
for  it  is  part  of  the  record.''  *-         ^ 

«  Bac.  Ab.  Ev.  F.  ;  B.  N.  P.  229. 

^  Bac.  Ab.  Ev.  F. ;  and  see  Appleton  v.  Lord  Brai/brookc,  2  Stark.  C.  (3  E.  C. 
L.  R.)  6  ;  and  Black  v.  Lord  Brai/hrooke,  2  Stark.  C.  (3  E.  C.  L.  R.)  7  ;  B.  N. 
P.  229. 

'  Lrish  Society  v.  BisJioj)  of  Derry,  12  CI.  &  F.  641. 

^  The  King  in  aid  of  Reed  v.  Hopper,  3  Price  495,  in  the  case  of  an  enrolment 
of  a  barjfain  and  sale.  So  in  cases  of  the  enrolment  of  memorials  of  annuity 
deeds  :  Garrick  v.  Williams,  3  Taunt.  340  ;  and  deeds  under  the  Mortmain  Acts  ; 
Doe  V.  Lloyd,  1  M.  &  G.  (39  E.  C.  L.  R.)  671  ;  Rex  v.  Sewell,  S  Q.  B.  (55  E.  C. 
L.  R.)  161.  And,  by  12  &  13  Vict.  c.  109,  s.  12,  a  certificate  of  enrolment  ia 
the  Petty  Bag  Office,  purporting  to  be  sealed  with  the  Chancery  Common  Law 
seal,  and  by  s.  IS,  a  certificate  of  enrolment  in  the  Enrolment  Office,  purporting 
or  appearing  to  be  sealed  with  the  seal  of  the  Chancery  Enrolment  Office,  shall 
be  admitted  in  evidence  without  further  proof.     These  certificates  are  by  those 

Eberts,  5  P.  F.  Smith  110;  Schuylkill  Co.  v.  McCreary,  S  P.F.Smith  304; 
Capling  v.  Herman,  17  Mich.  524;  Carber  v.  Hopkins,  41  Yt.  250  ;  Condit  v. 
BlackwaU,  4  Green  193  ;  Robinson  v.  Simmons,  7  Philada.  127  ;  Simons  v.  Cook, 
29  Iowa  324  ;  Coffee  v.  Neely,  2  Heisk.  304  ;  Bennett  v.  Bennett,  Deady  300.  As 
to  what  constitutes  a  record  of  a  judgment,  see  State  v.  Logan,  33  Md.  1  ;  Jay 
V.  East  Livermore,  56  Me.  107 ;  Buffington  v.  Cook,  39  Ala.  64 ;  Knapp  v.  Abell, 
10  Allen  4S5  ;  McCormick  v.  Beaver,  22  Md.  187  ;  Evans  v.  Reid,  2  Mich.  N. 
P.  212. 

The  Act  of  Congress  as  to  authentication  of  records  does  not  apply  to  records 
of  the  United  States  Courts  :  Adams  v.  Way,  33  Conn.  419.  The  mode  of 
authenticating  documents  of  the  departments  of  the  United  States  is  governed 
by  the  laws  of  the  United  States  and  by  the  practice  of  such  departments  and 
not  by  the  statute  of  the  State:  Oilman  v.  Riopelle,  18  Mich.  145.  The  certifi- 
cate under  seal  of  the  department  of  foreign  affairs  of  a  foreign  government 
proves  itself,  and  is  a  sufficient  authentication  of  any  public  record  of  that 
country :  Stanglein  v.  State,  17  Ohio  St.  453.  An  official  certificate  of  what  is 
contained  in  a  record,  docket,  deed  or  other  instrument  is  not  admissible  unless 
made  so  by  statute :  Jay  v.  East  Livermore,  56  Me  107. 


261  DOCUMENTS     OF    A    PUBLIC     NATURE. 

Office  copies  of  judicial  proceedings,  other  than  those  last  mentioned, 
that  is,  copies  made  by  the  known  officers  of  the  court,  seem  to  be 
admissible  for  particular  purposes  in  the  same,  but  not  in  another  court.'' 
With  respect  to  causes  depending  in  Chancery,  it  is  said  that  office 
copies  are  the  very  records  of  the  court,  and  prove  themselves,  and 
that  no  other  copy  can  be  produced  therein  ;^  but  such  copies  are  not 
admissible  in  other  courts."* 

By  various  statutes  also  copies  of  records  and  other  judicial  pro- 
ceedings are  rendered  admissible  in  evidence,  if  certified  by  certain 

officers,  and  sealed  with   the  seal   of  the  *office   or  court. 
r*0(3-9-|  ' 

L  -  -J    rjijjg  g^.^^  ^j^^  principal  of  these  is  the  statute  relating  to  the 

custody  of  the  public  records,  which,  after  directing  that  all  the  pub- 
lic records,  including  among  others  those  of  the  Courts  of  Chancery, 
Exchequer,  Admiralty,  Queen's  Bench,  Common  Pleas  and  Marshal- 
sea,  shall  be  placed  under  the  care  of  the  Master  of  the  Rolls  and  a 
deputy  keeper  of  records,  provides  that  copies  of  any  of  these  certified 
by  the  deputy  keeper  of  the  records,  or  one  of  the  assistant  record 
keepers,  and  purporting  to  be  sealed  or  stamped  with  the  seal  of  the 
Record  Office,  shall  be  admissible  in  evidence  without  further  proof." 

sections  directed  to  be  made  on  the  instrument  and  to  state  the  day  of  enrol- 
ment, of  which  the  certificate  is  also  made  evidence.  A  memorandum  of  en- 
rolment of  a  lease,  on  the  margin  of  the  lease,  signed  "A.  B.,  Auditor,"  is 
sufficient  proof  that  the  lease  has  been  enrolled  with  the  auditor  of  the  Duchy 
of  Lancaster :  Kinnersly  \.  Orpe,  1  Doug.  56. 

^  In  general,  an  office  copy  is  admissible  in  evidence  in  the  same  court  and  in 
the  same  cause,  but  not  in  a  different  cause,  though  in  the  same  court:  ^>er  Lord 
Mansfield,  in  Deym  v.  Fulford,  Burr.  1177  ;  Pitcher  v.  King,  1  Car.  &  K.  (47  E. 
C.  L.  Ft.)  655.  Of  course,  when  a  writing  is  admitted  under  a  judge's  order  to 
be  a  true  copy,  it  is  admissible  without  further  proof:  Davies  v.  Bavies,  9  Car. 
&  P.  (38  E.  C.  L.  R.)  252. 

'  Denn  v.  Fulford,  Burr.  1177. 

»  1  Bl.  289 ;  Black  v.  Lord  Brayhroohe,  2  Stark.  C.  (3  E.  C.  L.  R.)  7 ;  and  it 
is  said  to  have  been  held  at  nisi  prius  that  upon  the  trial  of  an  issue  out  of 
Chancery,  office  copies  of  depositions  in  Chancery  in  the  same  cause  were  not 
receivable  :  Burnand  v.  Kerot,  1  C.  &  P.  (12  E.  C.  L.  R.)  578  ;  but  see  the  opinion 
of  Littlcdalc,  J.,  in  Uighfield  v.  Peake,  M.  &  M.  (22  E.  C.  L.  R.)  109  ;  Vol.  H., 
tit.  Office  Copy. 

°  1  (t  2  Vict.  c.  94,  s.  13.  Though  all  the  records  then  existing  in  the  various 
courts  were  transferred  by  this  statute,  yet  the  future  were  not  at  once ;  but  a 
provision  is  contained  in  the  Act  (s.  3)  by  which  the  accumulating  records  of 
the  ago  of  twenty  years  may  from  time  to  time  be  brought  under  the  custody  of 
the  Master  of  the  Rolls.  The  statute  is  more  fully  referred  to,  ante,  p.  255, 
where  the  particular  records  mentioned  in  it  arc  sj)Ocificd.  The  clauses  which 
provide  for  the  making  of  copies  are  ss.  12  and  13,  and  they  provide  (s.  12), 
"  That  the  Master  of  the  Rolls  or  Deputy  Keeper  of  the  Records  may  allow 


now    PROVED — OFFICE    COPY.  262 

The  recent  statute,"  likewise,  for  the  regulation  of  the  Petty  Bag 
OflSce,   and  the  practice  of  the  Common  Law  side  of  the  Court  of 
Chancery,  and  the  Enrolment  Office  in  Chancery  provides   that    a 
copy  of  any  document,  sealed  with  the   Common   *Law,P  or 
Enrolment  Office  Seal,  shall  be  deemed  a  true  copy,"'  and  be   '-  "     -• 

copies  to  be  made  of  any  records  in  the  custody  of  the  Master  of  the  Rolls,  at 
the  request  and  cost  of  any  person  desirous  of  procuring  the  same ;  and  any 
copy  so  made  shall  be  examined  and  certified  as  a  true  and  authentic  copy  by 
the  Deputy  Keeper  of  the  Records  or  one  of  the  Assistant.  Record  Keepers  afore- 
said, and  shall  be  sealed  or  stamped  with  the  seal  of  the  Record  Office,  and  de- 
livered to  the  party  for  whose  use  it  was  made."  And  (s.  13)  "that  every  copy 
of  a  record  in  the  custody  of  the  Master  of  the  Rolls,  certified  as  aforesaid,  and 
purporting  to  be  sealed  or  stamped  with  the  seal  of  the  Record  Office  shall  be 
received  as  evidence  in  all  courts  of  justice,  and  before  all  legal  tribunals,  and 
before  either  House  of  Parliament,  or  any  Committee  of  either  House,  without 
any  further  or  other  proof  thereof,  in  every  case  in  which  the  original  record 
could  have  been  received  there  as  evidence." 

«  12  &  13  Vict.  c.  109. 

P  Sect.  11  having  directed  that  a  Chancery  Common  Law  seal,  of  which  all 
courts  are  to  take  judicial  notice,  shall  be  provided,  s.  13  enacts  that  every  office 
copy  issued  shall  be  sealed  with  the  said  Chancery  Common  Law  seal,  and  "  That 
every  document  sealed  with  such  seal,  and  purporting  to  be  a  copy  of  any  record, 
or  other  document  of  any  description,  shall  be  deemed  to  be  a  true  copy  of  such 
record  or  other  document,  and  shall,  without  further  proof,  be  admissible  and 
admitted  and  received  in  evidence,  as  well  before  either  House  of  Parliament,  as 
also  before  any  committee  thereof,  and  also  by  and  before  all  Courts,  Tribunals, 
Judges,  Justices,  Officers,  and  other  persons  whomsoever,  in  like  manner,  and 
to  the  same  extent  and  effect  as  the  original  record,  or  other  document  would  or 
might  be  admissible,  or  admitted,  or  received,  if  tendered  in  evidence,  as  well 
for  the  purpose  of  proving  the  contents  of  such  record  or  other  document,  as 
also  proving  such  record  or  other  document  to  be  a  record  or  document  of,  or 
belonging  to,  the  said  Court  of  Chancery,  but  not  further  or  otherwise." 

•J  Sect.  17  directs  a  seal  or  stamp  to  be  provided,  of  which  all  courts  shall  take 
judicial  notice  ;  sect.  19  enacts,  "  that  every  document  or  writing,  sealed  or 
stamped,  or  purporting  or  appearing  to  be  sealed  or  stamped  with  the  said  seal 
of  the  Chancery  Enrolment  Office,  and  purporting  to  be  a  copy  of  any  enrolment 
or  other  record,  or  of  any  other  document  or  writing  of  any  description  whatso- 
ever, including  any  drawings,  maps,  or  plans  thereunto  annexed  or  endorsed 
thereon,  shall  be  deemed  to  be  a  true  copy  of  such  enrolment,  record,  document, 
or  writing,  and  of  such  drawing,  map,  or  plan  (if  any)  thereunto  annexed,  and 
shall,  without  further  proof,  be  admissible  and  admitted  evidence,  as  well  before 
either  House  of  Parliament,  as  also  before  any  committee  thereof ;  and  also  by 
and  before  all  Courts,  Tribunals,  Judges,  Justices,  Officers,  and  other  persons 
whomsoever,  in  like  manner  and  to  the  same  extent  and  effect  as  the  original 
enrolment,  record,  document  or  writing,  could  or  might  be  admissible  or  ad- 
mitted in  evidence,  as  well  for  the  purpose  of  proving  the  contents  of  such  en- 
rolment, record,  document,  or  writing,  and  the  drawing,  map,  or  plan  (if  any) 


264         DOCUMENTS  OF  A  PUBLIC  NATURE. 

admissible  in  evidence  to  the  same  *extent  and  effect  as  the 
L  *"  -I  original.  By  the  recent  Bankrupt  Act,""  any  proceedings  ap- 
pearing to  be  scaled  with  the  seal  of  the  Bankruptcy  Court  or  writ- 
ings purporting  to  be  copies  and  to  be  so  sealed,  are  to  be  admitted 
in  all  courts  as  evidence ;  and  a  provision^  is  also  made  that  all  fiats 
and  proceedings  entered  of  record  before  2  &  3  Will.  IV.,  c.  114,  or 
purporting  to  have  been  sealed  before  the  commencement  of  this 
Act  with  the  seal  of  the  Court  of  Bankruptcy  theretofore  in  use,  or 
a  writing  purporting  to  be  a  copy  of  any  such  document  and  to  have 
been  so  sealed,  and  in  the  case  of  any  fiat  and  proceedings  entered 
of  record  before  the  passing  of  the  last-mentioneil  Act,  with  the  cer- 
tificate thereon  purporting  to  be  *signed  by  the  person  duly 
L  "  J  authorized  to  enter  proceedings  in  bankruptcy,  or  by  his 
deputy,  shall  be  received  as  evidence.  By  the  Insolvent  Debtor's 
Act,  also, "^  copies  of  the  petition  and  other  proceedings  purporting  to 

thereunto  annexed,  as  also  proving  such  enrolment,  record,  document,  or  writing 
to  be  an  enrolment,  record,  document,  or  writing,  of,  or  belonging  to  the  said 
Court  of  Chancery,  and  that  such  enrolment,  record,  document,  or  writing  was 
made,  acknowledged,  prepared,  filed,  or  entered  on  the  day  and  at  the  time 
when  the  original  record,  document,  or  writing,  shall  purport  to  have  been 
made,  acknowledged,  prepared,  filed,  or  entered." 

'  12  &  13  Vict.  c.  106,  s.  236,  which  provides,  "  That  any  fiat,  petition  for  ad- 
judication of  bankruptcy,  petition  for  arrangement  between  a  debtor  and  his 
creditors,  assignment,  appointment  of  assignees,  certificate,  deposition,  or  other 
proceeding  or  order  in  bankruptcy,  or  under  any  such  petition  for  arrangement, 
appearing  to  be  sealed  with  the  seal  of  the  court,  or  any  writing  purporting  to 
be  a  copy  of  any  such  document,  and  purporting  to  be  so  sealed,  shall  at  all 
times  and  on  behalf  of  all  persons,  and  whether  for  the  purposes  of  this  Act  or 
otherwise,  be  admitted  in  all  courts  whatever  as  evidence  of  such  documents 
respectively,  and  of  such  proceedings  and  orders  having  respectively  taken 
place,  or  been  made,  and  been  deemed  respectively  records  of  the  court,  without 
further  proof  thereof;  and  no  such  document  or  copy  shall  be  I'eceivable  in 
evidence  unless  the  same  appear  to  be  so  sealed,  except  where  otherwise  pro- 
vided by  this  Act." 

'  Section  236.  "  Provided  always,  that  all  fiats  and  proceedings  under  the 
same  which  may  have  been  entered  of  record  before  the  passing  of  the  Act  (2  & 
3  Will.  IV.  c.  114),  or  purporting  to  have  been  sealed  before  11th  October  1849, 
Avith  the  seal  of  the  Court  of  Bankruptcy  theretofore  in  use,  or  a  writing  pur- 
porting to  be  a  copy  of  any  such  document,  and  purporting  to  have  been  so 
sealed,  shall  and  may,  upon  the  production  thereof,  aud  in  the  case  of  any  fiat 
or  proceedings  so  entered  of  record  before  the  passing  of  the  last-mentioned  Act, 
with  the  certificate  thereon  purporting  to  be  signed  by  the  person  duly  author- 
ized to  enter  proceedings  in  bankruptcy,  or  his  deputy,  be  received  as  evidence 
of  the  same  and  of  the  same  having  been  duly  entered  of  record,  and  of  such 
proceedings  having  respectively  taken  place.'' 

1  &  2  Vict.  c.  110,  8.    105.     "That  a  copy  of  such  petition,  vesting  order, 


HOW  PROVED  —  EXAMINED  COPY.  265 

be  certified  by  tbe  officer  in  whose  custody  they  are,  or  his  deputy, 
and  to  be  sealed  with  the  seal  of  the  court,  are  rendered  sufficient 
evidence;  and  a  somewhat  similar  provision  is  contained  in  the  County 
Court  Act." 

Thirdly,  Sworn  copies.  Not  only  records,  but  all  pul)lic  docu- 
ments Avhich  cannot  be  removed  from  one  place  to  another,  may  be 
proved  by  means  of  a  copy  proved  on  oath  to  have  been  examined 
with  the  original.  This  is  to  be  considered  as  a  deviation  from  the 
general  rule,  that  the  best  evidence  must  always  bo  produced  for  the 
sake  of  public  convenience.  All  judicial  proceedings,  whether  in 
British  or  foreign  courts,^  may  be  proved  by  means  *of  a  r^jcQpp-i 
sworn  copy,  although  it  be  not  an  office  copy  ;^  and  whether 

schedule,  order  of  adjudication,  and  other  orders  and  proceedings  purporting 
to  be  signed  by  the  officer  in  whose  custody  the  same  shall  be,  or  his  deputy, 
certifying  the  same  to  be  a  true  copy  of  such  petition,  vesting  order,  schedule, 
order  of  adjudication,  or  other  proceeding,  and  purporting  to  be  sealed  with 
the  seal  of  the  court,  shall  at  all  times  be  admitted  in  all  courts  and  places 
whatever  as  sufficient  evidence  of  the  same,  without  any  proof  whatever  given 
of  the  same." 

"  9  &  10  A^ict.  c.  95,  s.  Ill,  enacts,  "That  the  clerk  of  every  court  holden 
under  this  Act  shall  cause  a  note  of  all  plaints  and  summonses,  and  all  orders, 
and  of  all  judgments  and  executions,  and  returns  thereto,  and  of  all  fines,  and 
of  all  other  proceedings  of  the  court,  to  be  fairly  entered  from  time  to  time  in 
a  book  belonging  to  the  court,  which  shall  be  kept  at  the  office  of  the  court ; 
and  such  entries  in  the  said  book,  or  a  copy  thereof,  bearing  the  seal  of  the 
court,  and  purporting  to  be  signed  and  certified  as  a  true  copy  by  the  clerk  of 
the  court,  shall  at  all  times  be  admitted  in  all  courts  and  places  whatsoever  as 
evidence  of  such  entries,  and  of  the  proceeding  referred  to  by  such  entry  or 
entries,  and  of  the  regularity  of  such  proceeding  without  any  further  proof." 

^  Apiileton  V.  Lord  Brai/brooke,  2  Stark.  C.  (3  E.  C.  L.  R.)  6  ;  6  M.  &  S.  34. 
In  an  action  on  judgments  recovered  in  the  Supreme  Court  of  Jamaica,  the 
plaintiff  produced  merely  paper  writings,  purporting  to  be  copies  of  the  judg- 
ments, subscribed  "  true  copy,"  and  signed  "i^.  S.,  clerk,"  to  which  were 
annexed  several  certificates :  first,  of  F.  S.  under  his  hand  and  seal  of  office, 
certifying  that  the  above  were  true  copies  of  the  original  judgments  of  record 
in  his  office,  and  that  the  same  were  still  unsatisfied ;  secondly,  a  certificate  of 
R.  i?.,  described  as  secretary  and  notary  public,  certifying  that  F.  S.  was  an 
accredited  clerk,  &c. ;  the  third  from  the  Governor-General,  under  the  seal  of 
the  island,  certifying  that  Ii.  E.  was  secretary,  &c.,  and  that  to  all  acts,  &c., 
signed  by  him,  credit  was  to  be  given  ;  the  evidence  was  held  to  be  insufficient, 
without  proving  the  copies  to  have  been  actually  examined  ;  the  seal  of  the 
island  not  being  affixed  to  the  copy  to  give  it  the  force  of  an  exemplification, 
but  only  to  authenticate  the  person  cei'tifying  to  be  a  person  to  whom  credit  was 
to  be  given.  So,  where  the  copy  was  proved  to  be  in  the  handwriting  of  one 
who  acted  and  signed  official  documents  for  the  principal  clerk :  Ibid. 

"1)671)1  v.  Ftdford,  Burr.  1177  ;  Hard.  119 ;  Gilb.  Law  of  Ev.  9 ;  16  East  334. 


266  DOCUMENTS     OF    A     PUBLIC     NATURE. 

the  court  be  a  court  of  record*"  or  otherwise.  The  proceedings  by- 
English  bill  in  Chancery  are  not  records,  and  may  themselves  be  given 
in  evidence/  or  may  be  proved  by  means  of  examined  copies.^ ' 

But  upon  an  indictment  for  perjury,  assigned  upon  an  answer  in 
Chancery,  the  original  must,  it  has  been  said,  be  produced.*  And 
also,  where  a  voluntary  aflSdavit  has  been  made  by  a  party, ^  which 
has  no  relation  to  a  proceeding  in  a  court  of  justice,  to  make  it  evi- 
dence against  the  party  the  original  must  be  produced.  Where  a 
r*9g-T"]  ^^'^^  *remains  in  Chancery,  by  order  of  the  Court,  a  copy  of 
it  is  evidence,  because  it  becomes  a  roll  of  the  court.^ 

The  copy  must  be  one  of  a  complete  record,  for  until  it  becomes  a 
permanent  record  it  is  transferable,  and  the  reason  for  admitting  a 
copy  to  be  evidence  does  not  apply. ''  Consequently  a  sworn  copy  of 
a  judgment  in  paper,  although  signed  by  the  Master,  upon  which 
judgment  might  be  taken  out,  is  not  admissible.'     And  to  prove  an 

So  a  grant  of  a  peerage  may  be  proved  by  an  examined  copy  of  the  record  of 
the  patent :  Lord  Lanesb o rough'' s  case,  1  H.  of  L.  Ca.  510. 

^  B.  N.  P.  226. 

=  Bac.  Ab.  Ev.  F. 

■^Bac.  Ab.  Ev.  F. ;  3  Mod.  116. 

*  Ibid. ;  B.  N.  P.  238  ;  for  the  identity  of  the  defendant  must  be  proved  ;  but 
qucere,  whether  this  might  not  be  established  by  admissions  or  otherwise  :  see 
James's  case,  Carth.  220  ;  Hanwell  v.  Lyon,  1  B.  &  A.  182  ;  Ry.  &  M.  (21  E.  C.  L. 
R.)  1G9  ;  Mortimer  v.  McCallan,  6  M.  &  W.  58  ;  Saijer  v.  Glossop,  2  Ex.  409. 

f  Chambers  v.  Robinson,  Trin.  12  Geo.  1  ;  B.  N.  P.  238  ;  Bac.  Ab.  Ev.  F. 
Examined  copies  of  other  affidavits  are  admissible  :  James's  case,  Carth.  220  ;  Doe 
V.  Wood,  Mann.  Index  122 ;  Rees  v.  Bowen,  M'L.  &  Y.  383 ;  and  ante,  p.  227 ;  note 
{f) :  unless,  perhaps,  on  an  indictment  for  perjury:  Crook  y.  Bowling,^  Dougl. 
(26  E.  C.  L.  R.)  75. 

«  Keb.  117  ;  Gilb.  Law  of  Ev.  67  ;  Bac.  Ev.  F.  ;  and  see  12  CI.  &  F.  304. 

"  Bac.  Ab.  Ev.  F. ;  B.  N.  P.  228  ;  Ayrey  v.  Davenport,  2  N.  R.  474 ;  Coohe  v. 
Maxioell,  2  Stark.  (3  E.  C.  L.  R.)  183  ;  R.  v.  Thring,  5  Car.  &  P.  (24  E.  C.  L. 
R.)  507. 

'  Ibid.  So,  to  prove  a  bill  of  indictment  to  have  been  found,  it  is  necessai-y 
to  show  a  record  with  a  complete  caption :  R.  v.  Smith,  8  B.  &  C.  (15  E.  C.  L. 
R.)  341.     And  see  Porter  v.  Cooper,  1  C.  M.  &  R.  388. 

^  The  proceedings  in  civil  suits  before  justices  of  the  peace  are  within  the 
rule  of  public  books  and  sworn  copies  are  evidence:  Welsh  v.  Crawford,  14  S. 
&  R.  440  ;  Hibbs  v.  Blair,  2  Harris  413  ;  Hughes  v.  Jones,  2  Md.  Ch.  178  ;  Jones 
V.  Davis,  2  Ala.  730.  The  Bank  of  the  State  of  Alabama  and  its  branches,  being 
public  property,  its  books  are  public  writings ;  and  where  the  books  themselves 
would  be  evidence  if  produced,  sworn  copies  ai'e  admissible  in  evidence :  Craio- 
ford  V.  Branch  Bank,  8  Ala.  79.  Sworn  copies  of  written  instruments  are 
admissililo  when  tiie  originals  are  beyond  the  jurisdiction  of  the  court :  St.  Jjouis 
Perpetual  Life  Lis.  Co.  v.  Cohen,  9  Mo.  421. 


EXAMINED    COPY — WHEN    ADMISSIBLE.  2G7 

interlocutory  and  final  judgment  and  execution,  an  examined  copy 
of  tlie  roll  carried  in  must  be  proved;  it  is  not  sufficient  to  produce 
entries  in  the  prothonotary's  book,  and  the  inquisition,  with  the 
prothonotary's  allocatur.''  And,  in  general,  a  mere  minute  book  of 
proceedings  from  which  the  record  is  subsequently  to  be  made  up  is 
not  admissible  in  evidence.^  But  where  the  record  cannot  regularly 
have  been  completed,  as  where  the  postea  cannot  have  been  entered 
by  reason  of  a  motion  for  a  new  trial,"  or  where  the  object  is  merely 
to  prove  that  some  judicial  proceeding  has  been  had,  without  respect 
to  any  ulterior  step  in  that  proceeding,  the  record  need  not  be  made 
up."  It  is  otherwise  as  to  a  matter  which  occurred  before  the 
*same  court  sitting  under  the  same  commission.  Upon  the  r^cyno-i 
trial  of  Ilorne  Tooke  the  minutes  of  the  court  were  pro- 
duced to  prove  the  acquittal  of  Hardy. ° 

The  copy  should  be  of  the  whole  record,  or  of  so  much  at  least 
as  concerns  the  matter  in  question, p  and  moreover  it  should  be  an 
exact  copy,  and  therefore  if  it  contains  abbreviations,  and  the  original 
be  written  in  words  at  length,  it  will  be  inadmissible.'' 

A  book  published  by  authority  in  a  foreign  country,  as  a  regular 
copy  of  treaties  concluded  by  the  State,  is  not  evidence  without 
proving  it  to  have  been  compared  with  the  original  archives.'' 

"  Godefroij  v.  Jay,  3  C.  &  P.  (14  E.  C.  L.  R.)  192.  The  day-book  kept  at 
the  office  is  not  evidence  of  the  date  of  signing  judgment :  Lee  v.  Meecock,  5  Esp. 
C.  177. 

•  B.  V.  Smith,  8  B.  &  C.  (15  E.  C.  L.  R.)  341  ;  Porter  v.  Cooj^er,  6  C.  &  P.  (25  E. 
C.  L.  R.)  354 ;  B.  V.  BeUam;/,  Ry.  &  M.  (21  E.  C.  L.  R.)  171  ;  B.  v.  Birch,  3  Q.  B. 
(43  E.  C.  L.  R.)  431.  Thus  the  minute-book  of  the  Court  of  Quarter  Sessions  is 
not  evidence  as  to  the  trial  of  an  indictment :  B.  v.  Thring,  5  Car.  &  P.  (24  E.  C. 
L.  R.)  507.  Or  an  appeal :  B.  v.  Ward,  6  C.  &  P.  (25  E.  C.  L.  R.)  366  ;  unless  in 
the  latter  case  it  be  the  only  record  :  B.  v.  Yeoveley,  8  Ad.  &  E.  (35  E.  C.  L.  R.) 
806  ;  Beg.  v.  Mortloch,  7  Q.  B.  (53  E.  C.  L.  R.)  459. 

■"  B.  V.  Browne,  3  C.  &  P.  ( 14  E.  C.  L.  R.)  572. 

"  B.  N.  P.  234 ;  Pitton  v.  Walter,  1  Str.  162 ;  Fisher  v.  Kitchingman,  Willes  367 ; 
i?.v.  Gordon,  Car.  &  M.  (41  E.  C.  L.  R.)  410. 

•  How.  St.  Tr.  vol.  XXV.,  p.  446. 

P  Tri.  P.  P.  166  ;  3  Inst.  173  •,  Beg.  v.  Baijnes,  1  Car.  &  K.  (47  E.  C.  L.  R.) 
70 ;  Bloicer  v.  HoUis,  1  C.  &  M.  396 ;  Leake  v.  Marquis  of  Westmeath,  2  M.  & 
Rob.  397  ;  Attwood  v.  Taylor,  1  M.  &  G.  (39  E.  C.  L.  R.)  289. 

1  Beg.  v.  Christian,  Car.  &  M.  (41  E.  C.  L.  R.)  388.  Upon  an  indictment  for 
perjury  on  an  affidavit  in  a  cause  in  Chancery,  a  witness  produced  an  office  copy 
of  the  bill,  containing  abbreviations,  for  instance,  "possd  of  cnsidble  perl  este," 
and  all  the  dates  in  figures  ;  he  stated  that  it  was  a  copy,  but  that  in  the  original 
the  words  and  figures  were  at  length.  Lord  Denman,  C.  J.,  held  that  the  copy 
in  this  respect  being  unlike  the  original  was  not  admissible. 

■^  Bichardson  v.  Anderson,  1  Camp.  65. 


268  DOCUMENTS     OF     A     PUBLIC     NATURE, 

It  is  a  general  rule,  that  whenever  the  original  is  of  a  public  na- 
ture, a  SAvorn  copy  is  admissible  in  evidence.  And  that  whenever  the 
thing  to  be  proved  would  require  no  collateral  proof  upon  its  produc- 
tion, it  is  provable  by  a  copy/  But  where  the  document  when  pro- 
duced would  require  support  from  collateral  proof,  it  has  been  thought 
that  a  copy  of  it  is  not  admissible,  and  therefore,  where  an  applica- 
tion was  made  that  an  original  examination  before  a  magistrate  might 
be  produced  upon  the  trial  of  a  cause,  it  was  ordered  because  the  ex- 
amination, if  produced,  would  not  in  itself  be  evidence,  without  proof 
of  the  handwriting  of  the  party.'  But  an  examined  copy  of  an  entry 
r^HQAQi  ^"^  ^^®  bank  books,  and  evidence  by  a  person  who  *had  in- 
spected the  entry  in  them,  that  the  handwriting  of  the  ac- 
ceptance of  a  transfer  of  stock  was  that  of  the  defendant,  was  held 
admissible  to  prove  the  acceptance  of  the  stock  by  him,  and  his  iden- 
tity, without  producing  the  books  themselves." 

Sworn  copies  of  the  following  documents  have  been  received  in 
evidence  : — 

Of  a  bank-note  filed  at  the  Bank."" 

Of  the  transfer- books  of  the  Bank  of  England.^ 

Of  transfer-books  of  the  East  India  Company.* 

Of  the  books  of  the  City  of  London.* 

Of  court-rolls  under  the  hand  of  the  steward.^ 

Of  the  journals  of  both  Houses  of  Parliament." 

Of  the  minute-books  of  the  House  of  Lords. "^ 

*  Hoe  V.  Nathorp,  Lord  Raym.  154;  Lynch  v.  ClerJce,  3  Salk.  153. 

'  B.  V.  Smith,  Str.  126. 

"  Mortimer  v.  McCallan,  6  M.  &  W.  58  ;  and  see  a7ite,  pp.  227,  note  (/)  266, 
note  (e). 

^  Man  V.  Cary,  3  Salk.  155 ;  12  Vin.  Ab.  97,  99. 

y  Mortimer  v.  McCallan,  6  M.  &  W.  58.  Before  this  case  it  had  been  held  that 
to  prove  a  transfer  of  stock,  a  copy  from  the  Bank  books  must  be  produced  ;  the 
testimony  of  the  broker  who  effected  the  transfer  is  insufficient :  Breton  v.  Cope, 
Executor,  Peake  43  ;  and  see  Douglas  593,  n.  Such  copies,  when  proved  to  be 
so,  are  direct  evidence  ;  and  the  court,  for  the  sake  of  example,  would  not  allow 
the  ])Ooks  themselves  to  be  read  :  Marsh  v.  Collnet,  2  Esp.  665. 

■'  Doug.  593  :  1  Str.  646. 

"  2  Str.  954,  955. 

i-  Doug.  593,  163  ;  12  Mod.  24. 

'  Doug.  593 ;  Cowp.  17  ;  Str.  126.  By  8  &  9  Vict.  c.  113,  s.  3,  copies  of  the 
.TourriiilN,  purporting  to  be  printed  by  the  printers  to  the  Queen  or  either  House 
of  I'iirliiiiiieiit,  are  made  evidence. 

•^  1  Cowp.  17. 


EXAMINED    COPY  —  WHEN    ADMISSIBLE.  269 

Of  an  .agreement,  from  a  book  in  the  Bodleian  Library,  from  which 
books  cannot  be  removed.'^ 

Of  the  probate  of  a  will  relating  to  personalty/ 

Of  a  parish-register.^ 

Of  a  poll-book  at  an  election.'' 

*0f  a  public  book  in  one  of  the  universities.' 

Of  entries  in  the  council-book  in  the  Secretary  of  State's  Office.'' 

Of  the  enrolment-book,  in  which  leases  are  registered  in  the  Bish- 
opric of  Durham.' 

Of  documents  in  the  nature  of  muniments  of  title  of  the  Crown, 
deposited  in  the  office  of  her  Majesty's  Land  Revenue  Records  and 
Enrolments,  pursuant  to  stat.  2  Will.  IV.,  c.  1." 

Of  books  of  the  commissioners  of  excise." 

Of  books  of  assessments  by  the  commissioners  of  land  tax." 

Although,  for  the  sake  of  public  convenience,  the  copy  of  a  public 
document  is  admitted  in  evidence  as  an  original,  a  copy  of  a  copy  is 
of  no  Aveight  whatsoever,  since  it  is  one  step  farther  removed  from  the 
original. P 

The  copy  must  be  proved  by  one  who  swears  that  he  has  compared 
it  with  the  original,''  taken  from  the  proper  place  of  deposit.  It  was 
formerly  thought  sufficient  for  this  purpose,  either  that  the  witness 
should  have  read  the  *copy  whilst  another  read  the  original,  r^^^D'^-i-i 
or  vice  versd,^  for  it  would  not  be  presumed  that  a  person  wil- 

•  Bun.  101  ;  Downes  v.  Moreman,  2  Gwill.  G59 ;  this,  however,  was  considered 
as  an  indulgence  under  the  particular  cii'cumstances  of  the  case. 

'  3  Salk.  154 ;  Eoe  v.  Kathorp,  1  Ld.  Raym.  154. 
«  Man  v.  Cart/,  3  Salk.  154;  Str.  1073,  s.  c. 
^  Mead  v.  Eobinson,  Willes  4:'2. 

•  Semble,  8  T.  R.  307.  "  Ei/re  v.  Palsgrave,  2  Camp.  606. 

•  Humble  V.  Hunt,  Holt's  C.  (3  E.  C.  L.  R.)  601. 

"  Doe  dem.  King  William  IV.  v.  Roberts,  13  M.  &  W.  520.  And  a  copy  of  an 
extract  from  a  rental  of  the  Earl  of  Leicester,  who  once  held  the  lands  in  ques- 
tion, whose  estate  had  come  back  to  the  Crown,  found  there,  was  held  evidence 
for  the  same  reason  ;  the  original  being  evidence  as  charging  the  receiver :  Ibid. 
So,  expired  leases  of  Crown  lands,  deposited  in  the  same  oiEce,  which  ought  to 
have  been  enrolled  under  10  Geo.  IV.  c.  50,  s.  63,  may  be  proved  (as  evidencing 
acts  of  ownership)  by  examined  copies,  although  they  may  not  have  been  en- 
rolled under  that  act:  Ibid.  And  semble,  when  original  documuents  would  be 
evidence,  and  they  are  kept  among  the  muniments  of  the  Crown  as  evidence  of 
its  title,  copies  are  evidence  :  Ibid. 

°  Fuller  V.  Fotch,  Carth.  346.  »  Bex  v.  Kiufj,  2  T.  R.  234. 

PGilb.  Law  of  Ev.  7. 

1  Bac.  Ab.  Ev.  F. ;  Str.  401 ;  2  Keb.  31,  546 ;  3  Keb.  1,2;  10  Co.  92. 

••  Eol/  V.  Dart,  2  Taunt.  52 ;  McXeel  v.  Perchard,  1  Esp.  264 ;  Gi/les  v.  Hill,  1 


271  DOCUMENTS     OF     A     PUBLIC     NATURE. 

fully  misread  the  record;  but  it  has  since  been  determined  that  it  is  not 
sufficient  that  the  witness  holds  the  copy  "while  another  reads  the 
record  :  there  must  be  a  change  of  hands,  or  the  witness  must  himself 
read  the  copy  with  the  original.'  It  is  not  necessary,  however,  that 
the  record  should  have  been  read  by  the  officer  of  the  court.'  Before 
a  document  can  be  read  as  a  copy  of  a  record,  it  must  be  proved  that 
the  original  either  came  out  of  the  hands  of  the  officer  of  the  court, 
or  from  the  proper  place  of  depositing  the  records  of  the  court  of 
which  it  purports  to  be  a  record,  and  the  contents  of  the  document 
itself  cannot  be  referred  to  in  support  of  such  proof."  The  copy 
must  be  an  accurate  and  complete  one,  not  having  abbreviations  where 
words  were  written  at  length  in  the  original.'' 

And  now,  in  order  to  facilitate  the  proof  of  such  document,  it  has 
been  enacted''  "  that  whenever  any  book  or  other  document  is  of  such 
a  public  nature  as  to  be  admissible  in  evidence  on  its  mere  production 
from  the  proper  custody,  and  no  statute  exists  which  renders  its  con- 
tents provable  by  means  of  a  copy,  any  copy  thereof  or  extract  there- 
from shall  be  admissible  as  evidence  in  any  court,  (fee,  provided  it  be 
proved  to  be  an  examined  copy  or  extract,  or  provided  it  purport  to 
be  signed  and  certified  as  a  true  copy  or  extract,  by  the  officer  to 
whose  custody  the  original  is  intrusted." 

*A  copy  is  never  admissible  where  the  original  is  produced." 
A  copy  of  an  entry  in  a  customal,  being  offered  in  evidence 
against  a  corporation,  was  rejected  on  production  of  the  original. 

Where  a  record  has  been  lost,  a  copy  may  in  some  instances  be  read 
in  evidence  without  proof  upon  oath  that  it  is  a  true  copy.''  But  to 
warrant  such  evidence  the  document  must  be  according  to  the  rule  of 
the  civil  law,  vetustate  temporis  autjudiciard  cognitione  roborata}     A 

Camb.  471 ;  Fi/son  v.  Kemp,  6  Car.  &  P.  (25  E.G.  L.  R.)  72 ;  Beid  v.  Margison, 
1  Camp.  469. 

'  Slane  Peerage,  5  CI.  &  F.  24;  Harrison  v.  Borwell,  10  Sim.  380. 

'  Gyles  V.  Hill,  1  Camp.  471. 

°  Adamthwaitev.  Singe,  1  Stark.  C.  (2  E.  C.  L.  R.)  183;  4  Camp.  372.  In 
order  to  prove  a  copy  of  an  Irish  judgment,  it  was  held  to  be  insufficient  for  the 
witness  to  prove  that  he  compared  tiie  writini!;  with  a  record  produced  to  him  in 
a  room  over  the  Four  Courts,  where  the  records  of  the  superior  courts  are  kept, 
without  seeinff  whence  the  record  was  taken,  or  knowing  the  person  who  pro- 
duced it  to  be  an  officer  of  the  court. 

="  IL  v.  Christian,  Car.  &  M.  (41  E.  C.  L.  R.)  3SS  ;  ante,  p.  2t)8,  note  [q). 

y  14  He  15  Vict.  c.  69,  h.  14. 

^  21  How.  St.  Tr.  app.  650. 

'  Vent.  257  ;  1  .Mo'l.  117;  Salk.  2^5  ;  Gill).  Law  of  Ev.  18  ;  Bac.  Ab.  Ev.  F. 

"  Dig.  292;   1  Mod.  117. 


THEIR    ADMISSIBILITY.  272 

copy  of  a  decree  of  tithes  has,  it  is  said,  been  often  given  in  evidence 
in  London,  without  proving  it  to  be  a  true  copy,  the  original  having 
been  lost,'''  So  the  exemplification  of  a  recovery  of  lands  in  ancient 
demesne,  where  the  original  was  lost,  and  possession  had  gone  a  long 
time  with  the  recovery,  was  admitted  in  evidence.*^  So,  where  it  ap- 
peared that  the  records  of  the  city  of  Bristol  has  been  burned,  an  ex- 
emplification of  a  recovery,  under  the  town  seal,  of  houses  in  Bristol, 
was  allowed  in  evidence.® 

Upon  an  ejectment  brought  for  the  recovery  of  a  rectory,  to  which 
a  recusant  had  presented,  it  was  held  that  the  record  of  the  convic- 
tion, Avhich  had  been  burned,  might  be  proved  by  estreats  in  the 
Exchequer,'^  and  an  inquisition  of  the  recusant's  lands  returned  there. 
So,  in  trover,  if  i^,  fieri  facias  or  venditioni  exponas  belost,^ '  other  evi- 
dence is  admissible ;  so,  also,  if  a  recovery  in  ancient  demense  be 
lost,  and  the  roll  cannot  be  found,  it  may  be  proved  by  the  oral  tes- 
timony of  witnesses,  where  the  possession  has  gone  accordingly.''  So, 
where  the  question  of  appropriation  is  in  issue,  and  the  king's  license 
has  been  lost,  the  issue  maybe  proved  by  other  evidence.'^ 

"=  1  Vent.  257  ;  B.  N.  P.  228  ;  see  Macdourjal  v.  Young.  Ry.  &  M.  (21  E.  C.  L. 
R.)  r.92. 
^  Green  v.  Proude,  1  Mod.  117. 
«  1  Mod.  117. 

f  Knight  v.  Dauler,  Hard.  323  ;  2  Salk.  285. 
eHard.  323  ;  Al.  18. 

"  1  Vent.  257;  2  Str.  1129 ;  2  Burr.  1072 ;  4  T.  R.  514. 
»  Hard.  323. 

'  So  parol  evidence  was  admitted  to  prove  that  a  ca.  sa.  issued,  and  that  the 
sheriff  returned  on  it  "not  found,"  the  ca.  sa.  having  been  lost  or  mislaid  : 
Jones  V.  Walker,  2  Ilayw.  291 ;  see  also  Buchanan  v.  Moore,  10  S.  &  R.  275.   G. 

And  where  a  fieri  facias  after  it  had  been  levied,  was  accidentally  burnt  in 
the  officer's  house,  the  court  directed  a  new  one  to  be  made  out  and  delivered  to 
him  :  White  v.  Lovejoy,  3  Johns.  448  ;  see  1  Phill.  Ev.  310,  3d  ed.  M. 

Parol  evidence  of  contents  of  record  is  not  admissible  unless  it  is  shown  to  be 
lost  or  destroyed:  Mason  v.  Bull,  26  Ark.  164. 

"^  Facts  which  may  have  become  matter  of  record,  may  be  proved  by  secondary 
evidence,  after  proof  is  given  of  the  existence  and  loss  of  the  record  :  Dillingham 
V.  Snow  et  al.,  5  Mass.  547  ;  Stockhridge  v.  West  Stockbridge.  1 1  Ibid.  4uO ; 
see  Swift's  Ev.  3.  The  certificate  of  a  clerk,  stating  the  loss  of  the  record,  is 
not  evidence  of  the  fact ;  it  must  be  proved  by  oath :  Wilcox  v.  Ray,  1  Hayw. 
410;  Robinson  v.  Clifford,  2  Wash.  C.  C.  Rep.  1.  But  where  it  is  proved  that 
most  of  the  records  of  a  clerk's  office  have  been  burnt,  and  the  rest  niutihited, 
the  journals  of  the  court  are  evidence:  Cook  v.  Wood,  1  McCord  139  ;  Lyons  v. 
Gregory,  3  lien.  &  Munf.  237,  s.  p.  Parol  evidence,  however,  of  a  conviction 
for  felony  was  held  inadmissible,  in  New  York,  though  it  was  proved  that  the 
17 


273  DOCUMENTS     OF     A     PUBLIC     NATURE. 

r^oi'-'l  Documents  of  a  public  nature,  and  of  public  authority,  *are 
generally  admissible  in  evidence,  although  their  authenticity 
be  not  confirmed  by  the  usual  and  ordinary  tests  of  truth,  the  obli- 
gation of  an  oath,  and  the  power  of  cross-examining  the  parties  on 
Avhose  authority  the  truth  of  the  document  depends.'  The  extraordi- 
nary degree  of  confidence  thus  reposed  in  such  documents  is  founded 
pi'incipally  upon  the  circumstance  that  they  have  been  made  by  au- 
thorized and  accredited  agents  appointed  for  the  purpose,  and  also 
partly  on  the  publicity  of  the  subject-matter  to  which  they  relate, 
and  in  some  instances  upon  their  antiquity.  Where  particular  facts 
are  inquired  into,  and  recorded  for  the  benefit  of  the  public,  those 
who  are  empowered  to  act  in  making  such  investigations  and  memo- 
rials, are  in  fact  the  agents  of  all  the  individuals  who  compose  the 
public;  and  every  member  of  the  community  may  be  supposed  to 
be  privy  to  the  investigation.  On  the  ground,  therefore,  of  the  credit 
due  to  the  agents  so  empowered,  and  of  the  public  nature  of  the  facts 
themselves,  such  documents  are  entitled  to  an  extraordinary  degree  of 
confidence,  and  it  is  not  requisite  that  they  should  be  confirmed  and 
sanctioned  by  the  ordinary  tests  of  truth ;  in  addition  to  this,  it 
would  not  only  be  difficult,  but  often  utterly  impossible,  to  prove 
facts  of  a  public  nature  by  means  of  actual  witnesses  examined  upon 
oath  ;  such,  for  example,  as  the  passing  of  particular  Acts  of  Par- 
liament, and  the  making  of  public  surveys.'' 

^  See  further  as  to  the  principles  on  which  public  documents  are  admissible, 
supra,  p.  260  ;  and  see  Slane  Peerage,  5  CI.  &  F.  24,  post. 

clerk's  office  had  been  burnt,  it  being  the  duty  of  the  District  Attorney  to 
deliver  a  transcript  into  the  Court  of  Exchequer,  which  duty  he  must  be  pre- 
sumed to  have  performed,  and  thus  have  furnished  evidence  of  a  higher  order  : 
Eilts  V.  Calvin,  14  Johns.  682.  M. 

The  docliet  entry,  upon  proof  of  the  loss  of  the  other  part  of  the  record,  is 
competent  evidence ;  and  parol  proof  may  be  given  of  the  contents  of  that  part 
of  the  record  which  is  lost:  Harvey  v.  Thomas,  10  Watts  63  ;  see  also  Heirs  of 
Ludlow  V.  Johnston,  3  Ohio  569.  G. 

As  to  oral  evidence  of  lost  records  see  Ravenscroft  v.  Gibony,  2  Mo.  1 ;  Lud- 
low V.  Johnston,  3  Ilamm.  553  ;  Prudeii  v.  Alden,  23  Pick.  184  ;  Fowler  v.  More, 
4  Piiie  570;  Nelson  v.  Boynlon,  3  Mete.  396;  Bogart  v.  Green,  S  Mo.  115; 
Stewart  v.  Conner,  9  Ala.  803;  Baskin  v.  Seechrist,  6  Barr  154;  Eakin  v. 
Vance,  10  S.  &  M.  549;  Wing  v.  Abbott,  28  Me.  367  ;  Weatherhead  v.  Basker- 
ville,\\  How.  (S.  C.)  329;  James  v.  Biscoe,  5  Engl.  184;  Small  v.  Peniiell,  31  Me. 
207  ;  Millard  v.  Hall,  24  Ala.  209.  The  testimony  of  the  clerk  of  the  court 
cannot  be  admitted  to  invalidate  the  transcript  of  a  record  of  a  judgment: 
Shirley  v.  Fearne,  33  Miss.  053.  When  a  record  has  become  illegible  by  lapse 
of  time  the  testimony  of  a  wiiness  who  had  examined  and  copied  it  while 
legible,  is  properly  received  to  supply  the  defect :  Little  v.  Doicning,  37  N. 
11.  355. 


ACT  OF  PARLIAMENT  —  HOW  PROVED.        273 

The  Acts  of  the  Legislature  are  records  Avritten  on  the  rolls  of  Par- 
liament/ and  arc  of  the  highest  and  most  *absolute  proof.  r^^.^'^A-t 
They  are  either  jniblic  or  2Jrwate.  They  are  public  or  gen- 
eral Acts  when  they  do  or  may  concern  the  kingdom  at  large;  they 
are  private  when  they  relate  to  a  particular  class  of  men,  or  to 
individuals  only  :  of  the  former  class,  are  Acts  which  concern  the 
king,  all  lords  of  manors,  all  officers  generall}'-,  all  spiritual  persons, 
or  all  traders  ;™  of  the  latter,  are  Acts  relating  to  the  nobility  only, 
or  to  particular  persons  or  traders." 

A  public  statute  requires  no  proof;   and  where  it  is  necessary  to 

refer  to  one,  a  copy  is  not  given  in  evidence,  but  merely  referred  to, 

to  refresh  the  memory."     Where  the  statute  is  not  in  express  terms 

made  a  public  statute,  it  is  still  such  with  a  view  to  evidence,  if  it  be 

of  a  general  and  public  nature,  affecting  all  the  king's  subjects  ;  and 

therefore  it  has  been  ruled  at   the  assizes,  that  a  statute,  *as    ^ 

•  r*2751 

far  as  it  related  to  a  public  highway,  was  to  be  considered    L  "     J 

as  a  public  statute.^     So  it  is  said  that  the  Act  of  Bedford  Levels, 

'  See  Preface  to  the  Statutes,  bj  the  Commissioner  of  Public  Records.  The 
original  of  a  public  Act  of  Parliament  is  kept  in  the  Parliament  Office,  and  a 
transcript  is  engrossed  and  certified  by  a  clerk  in  Parliament,  and  deposited  in 
the  Rolls  Chapel.  Private  Acts  are  filed  and  labelled,  and  remain  with  th* 
clerk  of  the  Parliament,  and  are  not  (except  a  few  of  the  earlier)  deposited  in 
the  Rolls  Chapel. 

™  It  seems  that  the  distinction  between  public  and  private  Acts  was  not  ob- 
served before  the  reign  of  Richard  III.  See  Preface  to  the  new  edition  of  the 
Statutes  at  Large. 

"  If  a  private  statute  be  recognized  by  a  public  Act,  it  will  afterwards  be 
judicially  noticed:  as  the  Statute  of  Bailbonds,  23  Hen.  VI.  c.  9;  which,  at  all 
events,  became  a  public  statute  when  the  statute  4  &  5  Anne,  c.  16,  s.  20,  made 
the  bonds  assignable  :  Samuel  v.  Eoans,  2  T.  R.  575  ;  Saxby  v.  Kirkus,  B.  N. 
P.  224. 

•  A  printed  statute  book  is  evidence  of  a  public  statute,  not  as  an  authentic 
copy  of  the  record  itself,  but  as  hints  of  that  which  is  supposed  to  be  lodged  in 
every  man's  mind  already:  Gilb.  Law  of  Ev.  12;  2  Salk.  566;  10  Mod.  126; 
Bac.  Ab.,  Ev.  F.  The  Courts  take  notice  of  all  public  Acts  of  Parliament,  and 
it  is  unnecessary  to  plead  them  ;  but  private  Acts  must  be  specially  pleaded :  B. 
N.  P.  222;  Lvrd  Bernard  v.  Saul,  1  Str.  498  ;  Ld.  Raym.  119.  But  although 
public  Acts  will  be  noticed  by  the  court  when  the  party  insists  upon  them  by 
way  of  defence,  the  defence  itself,  when  depending  on  a  statute,  must  be  pleaded 
as  much  as  when  it  depends  upon  the  common  law.  As,  where  a  defendant 
means  to  insist  upon  the  Statute  of  Limitations,  or  the  Statute  of  Usury,  unless 
he  plead  the  defence  specially,  he  cannot  rely  upon  the  Statute  of  Limitations 
in  evidence  under  the  plea'of  non  assumpsit,  nor  upon  the  Statute  of  Usury  upon 
the  plea  of  7iciw  est  factum  to  a  declaration  upon  a  bond  :  B.  N.  P.  224.  See  tit. 
Debt — Deed — Penal  Action — Usury — Highway. 

"  By  Chambre,  J.,  MS.  C.    But  a  private  act  that  concerned  Rochester  Bridge, 


275  DOCUMENTS    OF    A     PUBLIC     NATURE. 

and  that  for  rebuilding  Tiverton,  are,  from  the  publicity  of  the 
subject-matter,  public  Acts;  and  that  a  printed  copy  might,  before 
the  recent  Act,  have  been  given  in  evidence.''  On  the  other  hand, 
an  Act  of  Parliament,  private  in  its  nature,  is  not  made  admissible  in 
evidence  against  strangers,  by  the  general  clause  declaring  it  a  public 
Act,  "which  only  applies  to  the  forms  of  pleading  and  evidence,  and 
does  not  vary  the  general  nature  aud  operation  of  the  Act.""  A 
power  in  an  Act  *to  levy  tolls  on  all  persons  using  a  particu- 
L  ~  J  lar  navigation,  is  not  sufficient  to  make  it  a  public  Act  as 
against  strangers.^ 

By  the  statute  of  41  Geo.  HI.,  c.  90,  s.  9,  copies  of  the  statutes  of 
Great  Britain  and  Ireland  prior  to  the  Union,  printed  by  the  printer 
duly  authorized,  shall  be  received  (mutually)  as  conclusive  evidence 
of  the  several  statutes  in  the  courts  of  either  kingdom. 

Where  an  Act  of  Parliament  is  of  a  private  nature,  proof  of  it  is 

though  printed  by  Rastell,  was  not  allowed  in  evidence :  Law  of  Ev.  82,  pi.  14, 
tarn  qu.  A  private  inclosure  Act,  containing  clauses  respecting  public  high- 
ways, is,  as  to  those  clauses,  a  public  Act:  B.  v.  Utterby,  Lincoln  Spring  Ass. 
1828.  Lord  C.  B.  Parker  permitted  the  printed  statute  concerning  the  College 
of  Physicians  to  be  read  from  the  printed  statute  book,  printed  by  the  King's 
printer:  Gilb.  Law  of  Ev.  10,  13  ;  see  further,  Bac.  Ab.,  St.  L.  A  very  learned 
opinion  given  by  Mr.  J.  Holroyd,  when  at  the  bar.  that  an  Act  of  Parliament, 
although  in  other  respects  private,  is,  as  regards  a  public  highway  to  which  it 
refers,  to  be  considered  a  public  Act,  has  in  many  instances  been  acted  upon  by 
magistrates  at  the  sessions.  In  a  late  case,  R.  v.  StonebecJaip,  York  Summer 
Ass.  1839,  on  an  indictment  for  obstructing  a  public  way,  Maule,  B.,  received 
an  award  under  a  local  inclosure  Act  in  evidence,  so  far  as  regarded  a  public 
highway,  set  out  under  the  award.  Where  a  map  of  a  parish  was  made  under 
an  inclosure  Act,  which  was  a  private  Act  and  not  printed,  it  was  not  received 
in  evidence  on  an  indictment  for  non-repair  of  a  highway,  to  show  the  bounda- 
ries of  the  parish,  in  the  absence  of  proof  of  the  Act,  although  brought  from  the 
parish  chest:  Reg.  v.  Inhabitants  of  Milton^  1  Car.  &  K.  (47  E.  C.  L.  R.)  58.  If 
counsel  produce  an  Act,  local  in  its  nature,  stating  that  it  is  to  be  judicially 
noticed,  the  judge  will  do  so  without  requiring  a  copy  printed  by  the  Queen's 
printer:  Forman  v.  Dawes,  Car.  &  M.  (41  E.  C.  L.  R.)  127. 

1  B.  N.  P.  225 ;  per  Holt,  C.  J.,  12  Mod.  216  ;  see  Pothier,  by  Evans,  vol.  ii., 
p.  152. 

■■  Sucli  a  clause  does  not  make  it  notice  to  all  the  world  of  its  contents  :  Ballard 
v.  Way,  1  M.  &  W.  520;  nor  evidence  against  them  as  to  recitals  or  statements 
therein  :  Beaumont  v.  Mountain,  10  Bing.  (25  E.  C.  L.  R.)  404;  Duke  of  Beau- 
fort v.  Smith,  4  Ex.  450;  Brett  v.  Beales,  M.  &  M.  (22  E.  C.  L.  R.)  421  ;  and 
tliis  must  ))e  taken  to  1)6  the  elVect  of  the  decision  in  the  latter  case.  See  Beau- 
mont v.  Mountain  and  Woodward  v.  Cotton,  infra.  It  still  remains  a  private  or 
local  and  personal  act:  Cock  v.  Gent,  12  M.  &  W.  234 ;  and  see  Richards  v. 
Easto,  15  M.  &  W.  242. 

"  lirelt  V.  Beales,  M.  &  M.  (22  E.  C.  L.  R.)  421. 


PRIVATE     ACTS     OF     PARLIAMENT.  276 

necessary ;  for  although  every  man  is  bound  to  take  notice  of  all 
Acts  which  concern  the  kingdom  at  large,  he  is  not  presumed  to 
be  cognizant  of  those  which  merely  concern  the  private  rights  of 
another.'  ^  The  usual  proof  formerly  was  by  means  of  a  copy 
proved  upon  oath  to  have  been  examined  with  the  Parliament 
roll,"  or  it  might  also  be  proved  by  means  of  an  exemplification 
under  the  great  seal."  And  a  private  Act,  if  it  be  thought  advisable, 
may  still  be  proved  in  this  way.  In  some  cases,  however,  to  facilitate 
proof,  it  was  directed  that  a  copy  printed  by  the  King's  printer  should 
be  admitted  in  evidence ;  and  then  the  production  of  a  copy  purporting 
to  have  been  so  printed  was  sufficient.^  Such  proof  having  been  found 
*extremely  convenient  and  safe  in  practice,  a  general  pro- 
vision  has  been  made  by  the  Legislature,  which  has  enacted    L         J 

'  Bac.  Ab.  Ev.  F. ;  Gilb.  Law  of  Ev.  13.  See  the  case  of  The  College  of  Physi- 
cians V.  West^  10  Mod.  353. 

"  In  order  to  show  that  a  private  Act,  which  was  not  upon  the  roll,  had  been 
passed,  a  document  was  produced  by  a  clerk  of  the  House  of  Lords,  headed 
"Lontc  Calendar  of  Acts  passed  from  12  Hen.  VIL  to  33  Geo.  IL,"  containing 
the  title  of  the  Act  in  question ;  the  earlier  part  of  this  appeared  to  have  been 
compiled  in  1G40,  and  it  was  proved  to  have  been  the  practice  to  enter  upon  the 
Long  Calendar  Acts  of  Parliament  as  soon  as  they  had  received  the  royal  assent, 
but  not  before ;  the  Court,  however,  seemed  to  think  that  this  was  no  evidence 
that  the  Act  had  been  passed  :  Doe  dem.  Bacon  v.  Bnjflges,  6  M.  &  G.  (46  E.  C. 
L.  R.)  282. 

^  See  tit.  ExEMPLiFiCATiox. 

y  Upon  nul  tiel  record,  pleaded  to  the  Composition  Act,  Holt,  C.  J.,  held,  that 
a  copy  printed  by  the  King's  printer  was  not  sufficient,  and  that  an  exemplifi- 
cation was  necessary  ;  but  said,  that  an  Act  printed  by  the  King's  printer  was 
always  good  evidence  before  a  jury  :  Anon.^  2  Salk.  566.  Where  an  indictment 
set  out  the  title  of  an  old  statute  (5  Eliz.  cap.  4),  agreeably  to  Ruffhead,  which 
differed  from  a  copy  of  tlie  Act  lately  printed  by  the  King's  printer,  the  court 
refused  to  direct  an  acquittal  without  proof  of  an  examination  of  the  Parliament 
roll :  Rex  v.  Barnett,  3  Camp.  344 ;  see  R.  v.  Jefferies,  1  Str.  446. 

'  To  constitute  a  statute  a  public  Act,  it  is  not  necessary  that  it  should  be 
equally  applicable  to  all  parts  of  the  State.  It  is  sufficient  if  it  extends  to  all 
persons  within  the  territorial  limits  described  in  the  statute :  Pierce  v.  Kimhall, 
9  Greenl.  54.  If  a  statute  contains  provisions  of  a  private  nature,  as  to  incorpo- 
rate a  bank,  &c.,  yet  if  it  contains  also  provisions  for  the  forfeiture  of  penalties 
to  the  State,  or  for  the  punishment  of  public  offences  in  relation  to  such  bank, 
it  is  a  public  statute:  Roger^s  case,  2  Greenl.  303;  Crawford  v.  Bank,  6  Ala. 
289.  Acts  prescribing  the  limits  of  counties  and  towns  are  public  Acts,  of  which 
the  courts  are  bound  judicially  to  take  notice  :  Comm.  v.  Sringfeld,  1  Mass.  9  ; 
New  Portland  v.  Neiv  Vineyard,  4  Shop.  69  ;  Gorham  v.  Springfield,  8  lb.  58  ; 
Stephenson  v.  Doe,  8  Blackf.  508  ;  Hinckley  v.  Beckwith,  23  Wis.  328  ;  Wright  v. 
Hawkins,  28  Tex.  452 ;    Whitaker  v.  Eighth  Avenue  R.  R.  Co.,  5  Rob.  650. 


277  DOCUMENTS     OF     A     PUBLIC    NATURE. 

"  that  all  copies  of  private  and  local  and  personal  Acts  of  Parliament, 
not  public  Acts,  if  purporting  to  be  printed  by  the  Queen's  printers, 
shall  be  admitted  as  evidence  thereof  by  all  courts,  judges,  justices 
and  others  without  any  proof  being  given  that  such  copies  were  so 
printed.'"^ 

Where  the  printed  copy  of  an  Act  is  incorrect,  the  court  will  be 
guided  by  the  Parliament  roll.''^ 

Where  a  party  appealed  against  an  act  done  by  another  under  a 
private  statute,  it  was  held  that  the  appellant  was  not  bound  to 
prove  an  examined  copy  of  the  roll,  and  that  a  printed  copy  was 
sufficient.^ 

But  in  many  cases  Acts  of  a  private  nature  contain  a  clause  de- 
claring that  they  shall  be  deemed  to  be  public  Acts,  and  requiring 
them  to  be  judicially  noticed  ;  in  such  cases  it  is  unnecessary  to  prove 
an  examined  or  other  copy.''^     And  in  order  further  to  dispense  with 

*  8  &  9  Vict.  c.  113,  s.  3.  By  s.  4,  if  any  person  shall  print  any  copy  of  any 
private  Act,  Avhich  copy  shall  falsely  purport  to  have  been  printed  by  the 
printers  of  the  Crown,  or  if  any  person  shall  tender  in  evidence  any  such  copy, 
knowing  that  the  same  was  not  printed  by  the  person  or  persons  by  whom  it  so 
purports  to  have  been  printed,  every  such  person  shall  be  guilty  of  felony, 
and  be  liable  to  transportation  or  imprisonment,  and  such  document  may  be 
impounded. 

^  See  R.  V.  Jefferies,  1  Str.  446  ;  Spring  v.  Eve,  2  Mod.  240  ;  Price  v.  Hollis,  1 
M.  &  S.  106. 

"  E.  V.  Shmv,  12  East  479. 

"  Beaumont  v.  Mountain,  10  Bing.  (25  E.  C.  L.  R.)  404  ;  Woodward  y.  Cotton, 
1  C.  M.  &  R.  44. 

*  A  printed  statute  may  be  corrected  by  the  enrolled  bill  filed  in  the  depart- 
ment of  State  :  Reed  v.  Clarke,  3  McLean  480. 

'  In  Massachusetts,  all  Acts  incorporating  manufacturing  companies  are,  by 
stat.  1808,  c.  65,  |  7,  made  public  Acts,  and  as  such  may  be  declared  upon  and 
given  in  evidence,  without  specially  pleading  them.  In  the  same  State  and  also 
in  Virginia  and  Pennsylvania  a  copy  of  private  statutes,  printed  by  order  of  the 
Legislature,  is  admitted  in  evidence  without  any  further  proof:  St.  of  Mass. 
1805,  c.  36;  Young  v.  Bank  of  Alexander,  4  Cranch  388;  Biddis  v.  James,  6 
Binn.  321.  And  in  Virginia  private  statutes  may  be  given  in  evidence  without 
being  specially  pleaded  ;  yet  they  must  be  exhibited  to  the  court  as  documents, 
and  are  not  to  be  noticed  judiciially  as  public  statutes  ai'e  :  Legrand  v.  Hampden 
Sidney  College,  5  Munf.  324.  In  New  York,  the  printed  statute  book  is  not 
evidence  of  a  private  Act,  but  it  seems  that  the  rule  does  not  apply  to  the  case 
of  a  private  statute  given  in  evidence  ])y  the  opposite  party,  against  the  party 
for  whose  benefit  the  Act  was  passed:  Duncan  v.  Duboijs,  3  Johns.  Cas.  125. 
Tiiat  courts  do  not  take  judicial   notice  of  private  statutes,  but  that  they  must 


ACTS     OF     STATE GAZETTE.  277 

proof,  every  Act  made  after  January  1st  1850,  is  directed  to 
*be  deemed  a  public  Act,  and  judicially  noticed  as  such,  uii-  r^oyo-i 
less  the  contrary  be  declared.*^ 

The  recital  in  the  preamble  of  a  public  Act  of  Parliament  of  a  pub- 
lic fact,  is  evidence  to  prove  the  existence  of  that  fact.  Where  an 
information  for  a  libel  alleged  that  outrages  had  been  committed  in 
particular  parts  of  the  kingdom,  the  preamble  of  a  public  Act  reciting 
the  fact  was  held  to  be  admissible  evidence  to  support  the  averment ; 
for  every  subject  is,  in  contemplation  of  law,  privy  to  the  making  of 
such  an  Act.* 

But  such  a  recital  in  a  private  Act,  even  though  it  contain  a  clause 
declaring  that  it  shall  be  taken  to  be  a  public  Act,  and  judicially 
taken  notice  of  as  such,  is  not  evidence,  generally  speaking,  to  prove 
the  facts  as  against  strangers.^  But  as  against  persons  who  were 
parties,  or  claim  through  them,  such  a  recital  will  be  evidence.  It 
may  likewise  be  evidence  of  reputation  ;  thus  upon  a  question  as  to 
the  right  of  free  warren  over  an  entire  manor,  with  respect  to  which 
reputation  is  admissible  evidence,  a  private  Act  for  inclosure  of  com- 
mon lands  within  the  manor,  in  the  recital  of  which  the  interest  of 
copyholders  appeared,  and  which  Act  contained  a  proviso  saving 
the  right  of  the  lord  to  free  warren  within  the  manor  in  as  ample  a 
manner  as  the  lord  had  theretofore  enjoyed  it,  was  held  to  be  evi- 
dence to  prove  the  right  against  a  copyholder.^  And  a  private  Act 
of  Parliament,  enabling  the  family  of  Kemeys  to  sell  certain  estates, 
and  describing  in  its  recitals  the  relationship  of  certain  members  of 
the  family,  was  held  very  strong  proof  of  that  relation,  so  as  to 
establish  part  of  a  pedigree.*"  ^ 

"  13  &  14  Vict.  c.  21. 

«  B.  V.  Sutton,  4  M.  &  S.  532 ;  and  see  R.  v.  De  Berengei;  3  M.  &  S.  67. 
*  Brett  V.  Beales,  M.  &  M.  (22  E.  C.  L.  R.)  421  ;  Beaumont  v.   Mountain,  1 
Bing.  (25  E.  C.  L.  R.)  404  ;  Duke  of  Beaufort  v.  Smith,  4  Ex.  450. 
e  Earl  of  Carnarvon  v.  Villehois,  13  M.  &  W.  313. 
■^  Wharton  Peerage,  12  CI.  &  F.  295. 

be  proved,  like  other  facts ;  see  also  Portsmouth  Livery  Co.  v.  Watson  et  al.,  10 
Mass.  91  ;  Pearl  v.  Allen,  2  Tyl.  311.  M. 

If  a  statute  of  a  private  nature  contain  a  clause  declariiiE;  it  a  public  Act,  it 
will  be  noticed  by  the  courts  as  a  public  Act :  BrookviUe  Ins.  Co.  v.  Records,  5 
Blackf.  170. 

'  The  recitals  in  the  preamble  of  a  private  statute  are  evidence  of  the  facts 
recited  as  between  the  State  and  the  party  for  whose  benefit  the  Act  is  passed, 
but  they  are  not  conclusive :  State  v.  Beard,  1  Smith  276 :  Fred  Female  Semi- 
nany  v.  State,  9  Gill.  379. 


279  DOCUMENTS     OF    A     PUBLIC     NATURE.  ' 

r^ico'jq-i  *Acts  of  State  may  be  proved  by  a  production  of  the  oflS- 
cial  printed  documents  authorized  by  government.  The 
Gazette'  is  evidence  of  all  acts  of  State,  and  of  everything  done  by 
the  King  in  his  regal  capacity ;  so  as  to  prove  an  averment  that 
divers  addresses  had  been  presented  to  the  King;''  for  having  been 
received  by  the  King  in  his  public  capacity,  they  become  acts  of 
State.  So  the  Gazette  is  evidence  to  prove  the  King's  proclamation, 
as  for  performance  of  quarantine.  So  the  printed  proclamation  of 
peace  is  evidence,  without  examination  with  the  Parliament  roll.* 
The  proclamation  for  reprisals  in  the  Gazette  is  evidence  of  an  ex- 
isting war."" 

r*-'?Sm        *^^  seems,  however,  that  knowledge  of  a  fact,  although  it 
be  of  a  public  nature  is  not  to  be  conclusively  inferred  from 
a  notification  in  the  Gazette;''  it  is  a  question  of  fact  for  the  jury. 

But  the  Gazette  is  not  evidence  to  prove  a  particular  military  ap- 
pointment," nor  to   prove  particular   facts   between   individuals, ^  and 

'  A  fjazette  purporting  to  be  printed  by  the  King's  printer,  must  be  taken  to 
be  the  London  Gazette :  E.  v.  Holt,  5  T.  R.  439. 

^  B.  V.  Holt,  5  T.  R.  486.  The  Queen's  proclamation  is  not  noticed  by  the 
court  without  the  production  of  the  Gazette  :  Van  Omeron  v.  Dowick,  2  Camp. 
44 ;  12  Yin.  Ab.  129  ;  Diqyays  v.  Shepherd,  12  Mod.  21G  ;  or  a.  copy  of  the  pro- 
clamation, purporting  to  be  printed  by  the  Queen's  printer,  which  is  declared 
to  be  sufficient  evidence  :  8  &  9  Vict.  c.  113,  s.  3.  In  a  prosecution  for  murder, 
the  articles  of  war  ought  to  be  produced  to  show  how  far  the  prisoner  was  bound 
to  obedience  to  the  deceased,  who  was  his  sergeant :  Dupays  v.  Shepherd.  In 
the  case  of  the  Attorney-Gen.  v.  Theakstone,  8  Price  89,  it  was  held  that  the 
Gazette  was  sufficient  evidence  of  a  proclamation  issued  by  the  council,  because 
it  is  a  public  Act  regarding  the  Crown,  and  the  government,  and  must  pass  the 
great  seal  before  it  can  be  admitted  into  the  Gazette.  In  General  Picton's  case, 
30  How.  St.  Tr.  225,  the  Gazette  was  admitted  to  prove  the  articles  of  capitula- 
tion for  the  surrender  of  an  island. 

'  Bac.  Ab.,  Ev.  F. ;  Doug.  594,  in  n. ;  B.  N.  P.  220  ;  Quech's  case,  14  How.  St. 
Tr.  1067. 

"  R.  V.  Holt,  5  T.  R.  443.  Public  notoriety  is,  it  is  said,  sufficient  evidence 
of  the  existence  of  a  war :  Fost.  C.  L.  219  ;  see  R.  v.  De  Bereuger,  3  M.  &  S.  67  ; 
and  11  Ves.  292.  And  a  declaration  of  war  by  a  foreign  government  trans- 
mitted by  the  English  ambassador,  and  produced  from  the  secretary  of  state's 
office,  is  evidence  of  the  commencement  of  war  with  a  foreign  state  :  Thellusson 
V.  Coslinfj,  4  Esp.  C.  266  ;  and  see  1  Dodson,  Ad.  R.  244.  Documents  transmited 
by  British  consuls,  stating  the  arrival  of  vessels  at  particular  ports,  are  not  evi- 
dence :  Roberts  el  al.  v.  Eddington,  4  Esp.  C.  88  ;  and  see  Waldron  v.  Coomhe, 
3  Taunt.  162. 

"  Uarratt  v.  Wise,  9  B.  &  C.  (17  E.  C.  L.  R.)  712. 

"  R.  v.  Gardiner,  2  Camp.  513. 

p  But  sec  R.  v.  Sutton,  4  M.  &  S.  532 ;  where  a  proclamation  offering  a  reward 
for  the  discovery  of  certain  offenders,  which  recited  that  outraires  had  been  com- 


DOCUMENTS     OF     A     PUBLIC    NATURE.  280 

therefore  it  is  not  evidence  in  an  action  to  prove  the  appointment  of 
one  of  the  parties  to  a  commission  in  the  army,  unless  (at  least)  the 
adversary  refuse  to  produce  the  commission,  which  is  the  best  evi- 
dence;'' nor  where  it  was  alleged  in  a  declaration  that  a  parish  had  been 
divided  into  distinct  parishes  by  order  of  the  King  in  council  under 
5S  Geo.  III.,  c.  45,  could  the  order  be  proved  by  producing  the 
Gazette  containing  a  copy  of  it.^  But  it  is  evidence,  as  a  medium  to 
prove  notices ;  as  of  the  dissolution  of  a  partnership,  which  is  a 
fact  usually  notified  in  that  manner.  But  without  proof  that  the 
party  to  be  affected  by  the  notice  read  the  particular  Gazette  in 
which  it  is  contained,  such  evidence  is  very  weak.*  And  it  seems  to 
be  incumbent  on  those  who  dissolve  partnership  to  give  special  notice 
of  it  to  those  with  whom  they  have  had  dealings."  ^  Notices  of 
bankruptcies  in  the  Gazette  are  made  sufficient  by  express  r*oei"| 
^legislative  provisions.     It  is  unnecessary,  it  is  said,  to  give 

mitted  in  certain  districts,  was  admitted  as  evidence  to  satisfy  an  averment  in 
an  information  for  a  libel  that  such  outrages  had  been  committed. 

1  Kirwan  v.  Cockburn,  5  Esp.  233 ;  s.  p.,  R.  v.  Gardner,  2  Camp.  513. 

•■  1  Stark.  Ev.  6U7,  3d  ed. 

^  Leeson  v.  Holt,  1  Stark.  C.  (2  E.  C.  L.  R.)  186  ;  Graham  v.  Hope,  Peake,  C. 
154;  Godfrey  v.  Macauley,  Peake,  C.  155,  n. ;  Gorliam  v.  Thompson,  Peake, 
C.  42. 

'  Leeson  v.  Holt,  1  Stark.  C.  (2  E.  C.  L.  R.)  186 :  see  Partnership  ;  and  see 
Graham  v.  Hope,  Peake,  C.  154 ;  Munn  v.  Baker,  2  Stark.  C.  (3  E.  C.  L.  R.)  255  ; 
Gorham  v.  Thompson,  Peake,  C.  42. 

"  1  Esp.  C.  171 ;  Gorham  v.  Thompson,  Peake.  C.  42;  Jenkins  v.  Blizard,  1 
Stark.  C.  (2  E.  C.  L.  R.)  418 ;  Kirwan  v.  Kirwan,  ICv.  &  M.  617. 

^  Notice  by  advertisement  in  a  newspaper  printed  at  the  place  where  the  part- 
nership business  was  carried  on  has  been  held  sufficient  notice  of  dissolution  as 
to  all  persons  who  had  no  previous  dealings  with  the  firm  :  Ketchum  v.  Clark, 
6  Johns.  144 ;  Graves  v.  Merry,  6  Cow.  701  ;  Shaffer  v.  Snyder,  7  S.  &  R.  503  ; 
Prentiss  v.  Sinclair,  5  Vt.  149  ;  Shurlds  v.  Tilson,  2  McLean  458  ;  Watkinson 
V.  Bank,  4  Whart.  482 ;  Gallicott  v.  Bank,  1  M'Mull.  209  ;  Mauldin  v.  Bank,  2 
Ala.  502  ;  Simonds  v.  Strong,  24  Yt.  642.  Actual  notice  however  must  be  given 
to  those  who  have  had  such  previous  dealings  :  Wardwell  v.  Haight,  2  Barb.  S.  C. 
549  ;  Hutchins  v.  Hudson,  8  Humph.  426  ;  Conro  v.  Iron  Co.,  12  Barb  27.  The 
receipt  by  a  previous  dealer  with  a  firm,  of  a  newspaper  containing  a  notice  of 
the  dissolution  of  the  partnership,  the  dealer  being  a  subscriber  for  the  paper, 
though  a  circumstance  tending  to  prove  notice,  is  not  per  se  sufficient  to  prove  it : 
Hutchins  v.  Bank,  8  Humph.  418.  To  constitute  a  person  a  previous  dealer, 
with  a  firm  and  entitled  to  actual  notice  of  the  dissolution  of  the  partnership, 
he  must  have  dealt  directly  with  the  firm  ;  it  is  not  sufficient  that  he  may  have 
dealt  in  paper,  for  which  the  firm  was  responsible  :  Ibid. 


281  FOREIGN    AND    COLONIAL    ACTS    OF     STATE. 

any  evidence  to  authenticate  the  Gazette  produced,  or  show  whence 
it  came/ 

Acts  of  State  in  a  foreign  country,  or  British  colony,  may  be 
proved  by  copies  examined  with  the  original  archives,  or  exemplified 
under  the  great  seal  of  that  country,^  or  by  copies  purporting  to  be 
sealed  with  the  seal  of  the  foreign  State  or  British  colony.^  Com- 
mercial regulations  must  be  proved  by  copies  thereof.^  ^ 

'  E.  V.  Fursi/th,  Russ.  &  R.  274. 

y  Richardson  v.  Anderson,  1  Camp.  65,  n. 

'  14  &  15  Vict.  c.  99,  s.  7.  "All  proclamations,  treaties,  and  other  acts  of 
state  of  any  foreign  state  or  of  any  British  colony,"  may  be  proved  in  any 
court,  &c.,  either  by  examined  copies  or  copies  authenticated,  as  hereinafter 
mentioned  ;  that  is  to  say,  they  "  must  purport  to  be  sealed  with  the  seal  of  the 
foreign  state  or  British  colony  to  which  the  original  document  belongs  ;"  "  but 
if  any  of  the  aforesaid  authenticated  copies  shall  purport  to  be  sealed  as  herein- 
before directed,  the  same  shall  be  admitted  in  evidence  in  every  case  in  which 
the  original  document  could  have  been  received  in  evidence,  without  any  proof 
of  the  seal." 

»  30  How.  St.  Tr.  491. 

^  By  the  statute  of  the  United  States  passed  May  26th  1790,  ''  The  Acts  of  the 
Legislatures  of  the  several  States  shall  be  authenticated  by  having  the  seal  of 
their  respective  States  affixed  thereto." 

In  conformity  with  the  decisions  on  the  latter  clause  of  this  statute  (see  ante^ 
p.  259),  it  might  be  anticipated  that  the  courts  of  the  United  States  would  hold 
that  the  statute  of  one  State  is  not  admissible  in  evidence  in  the  courts  of  another, 
unless  authenticated  by  the  seal  of  the  State  in  which  it  is  enacted.  It  has  ac- 
cordingly been  held  that  printed  statute  books  not  authenticated  by  the  seal  of 
the  State  are  not  admissible  evidence  in  any  other  State :  Craig  v.  Brown, 
Peters  C.  C.  352.  And  this  decision  has  been  followed  in  North  Carolina : 
State  V.  Ticitty,  2  Hawks  441.  It  has  been  previously  held,  in  that  State,  that 
the  printed  laws  of  Virginia  were  good  evidence  :  Poindextery.  Bai-ker,  2  Hayw. 
173;  although  a  statute,  certified  by  the  clerk  of  the  House  of  Delegates,  was 
ruled  not  to  be  evidence :  Ellmore  v.  Mills,  1  Hayw.  360.  In  Pennsylvania,  the 
courts  have  admitted  in  evidence  copies  of  the  statutes  of  other  States  contained 
in  a  book  purporting  on  its  face  to  contain  the  laws  of,  and  to  be  printed  by  the 
printers  of  those  States  :  Thompson  v.  Musser,  1  Dall.  462  ;  one  judge  dissenting  ; 
s,  p.  Biddis  V.  James,  6  Binn.  321  ;  and  in  one  instance  such  evidence  has  been 
rejected :  Comm.  v.  Fraser,  cited  6  Binn.  323.  In  (Massachusetts  and)  Vermont  the 
statute  laws  of  any  one  of  the  United  States,  if  printed  under  the  authority  of 
such  State  are  admitted  in  evidence  :  {liaynham  v.  Canton,  3  Pick.  Rep.  293) ; 
State  V.  Blade,  1  Chip.  Rep.  303.  The  court  said,  in  that  case,  "  If  such  an  Act 
be  proved,  agreeably  to  the  provisions  of  the  Act  of  Congress,  the  courts  are 
hound  to  admit  it;  they  may  admit  it,  although  not  so  proved."  In  Connecticut, 
a  book  of  the  statutes  of  another  State,  printed  by  a  2>rivate  printer,  is  not 
admisHilde  in  evidence  :  Bostwick  v.  Bogardcs,  2  Root  250.  Where  the  seal  of  a 
State  is  affi.vcd  to  an  exemplification  of  an  Act  of  the  Legislature,  the  attestation 


DOCUMENTS     OF    A     PUBLIC    NATURE.  281 

So  certain  things,  besides  Acts  of  Parliament,  printed  or  pur- 
porting to  be  printed  by  the    Queen's    printer  are  evidence;    thus 

of  a  public  officer  is  not  required  :  United  States  v.  Johns,  4  DaU.  413.  Although 
in  strictness,  the  Acts  of  the  Legislature  of  other  States  are  (probably)  not 
admissible  in  evidencic,  unless  they  are  authenticated  according  to  the  above- 
mentioned  statute  of  the  United  States,  yet  in  practice,  public  statutes  published 
by  authority  of  other  States  arc  genei-ally  read  without  objection  in  the  State 
courts.  The  statute  of  another  State  cannot  be  noticed  by  courts  unless  they 
are  pleaded :  Pearsall  et  al.  v.  Dwight,  2  Mass.  Rep.  84 ;  Legg  v.  Legg,  8  Ibid. 
99;  Walker  et  al.  v.  Maxwell,  1  Ibid.  104;  Bcauchamjy  v.  Mudd,  Hardin  165  ; 
see  also  Tarlton  v.  Briscoe,  4  Bibb  73  ;  Talbot  v.  David,  2  Marsh.  609  ;  where  it 
was  decided  by  the  Court  of  Kentucky,  that  the  laws  of  a  sister  State  cannot  be 
judicially  noticed  there,  but  must  be  proved.  M. 

The  journals  of  the  Senate  of  New  York,  printed  by  the  State  printer,  and 
laid  on  the  tables  of  members,  are  evidence:  Root  v.  King,  7  Conn.  613.  But 
the  commercial  code  of  France,  which  is  a  written  law,  cannot  be  proved  by  the 
production  of  a  printed  book  admitted  to  be  conformable  to  the  official  edition 
of  the  code  published  hy  the  government:  Chamoine  v.  Fowler,  3  Wend.  173; 
see  also  Lincoln  v.  Battelle,  6  Wend.  475  ;  Harford  v.  Nichols,  1  Paige  220.  Gr. 

Printed  statute  books  of  laws  of  sister  States  are  admissible  :  Thomas  v.  Davis, 
7  B.  Mon.  227  ;  Burton  v.  Anderson,  1  Tex.  93  ;  Clarke  v.  Bank  of  Missis sipjn, 
5  Engl.  516  ;  Stewart  v.  Swanzij,  23  Miss.  502 ;  Barkman  v.  Hopkins,  6  Engl. 
157  ;  Lord  v.  Staples,  3  Fost.  448  ;  Emerrj  v.  Berrij,  8  Fost.  473  ;  Dixon  v. 
Thatcher,  14  Ark.  141  ;  Charlesicorth  v.  Williams,  16  111.  338  ;  Adams  v.  Gay, 
19  Vt.  358 ;  Stanford  v.  Fruet,  27  Ga.  243 ;  Yarborough  v.  Arnold,  20  Ark. 
592;  Merrifeld  v.  Bobbins,  8  Gray  150;  Vaughn  v.  Griffith,  16  Ind.  353; 
Greasons  v.  Davis,  9  Iowa  21 9  ;  Ashley  v.  Root,  4  Allen  504  ;  Crake  v.  Crake, 
18  Ind.  156.  A  digest  of  the  laws  of  a  State,  which  does  not  appear  to  have 
been  published  by  authority  of  law,  is  inadmissible:  Geron  v.  Felder,  15  Ala. 
304.  Foreign  laws  or  those  of  sister  States  are  proved  like  other  facts ;  and 
the  unwritten  laws  and  customs  are  ordinarily  proved  by  the  oral  testimony  of 
competent  witnesses  instructed  in  the  law :  7)/ler  v.  Trabue,  8  B.  Mon.  806 ; 
Bryant  v.  Kelton,  1  Tex.  434 ;  Stevens  v.  Bomar,  9  Humph.  546 ;  Gardner  v. 
Leiois,  7  Gill.  377.  Although  in  the  case  of  an  isolated  and  peculiar  nation, 
like  China,  there  may  be  admitted  parol  evidence  of  its  laws,  and  this  from 
persons  not  jurisconsults,  yet  such  evidence  will  be  received  only  when  it  is  so 
direct  and  positive  as  to  be  quite  free  from  ambiguity :  Wilcocks  v.  Fhillips, 
Wall.  Jr.  47.  Proof  of  the  written  law  of  a  foreign  country  may  be  by  some 
copy  of  the  law,  which  the  witness  can  swear  was  recognized  as  authoritative 
in  the  foreign  country,  and  which  was  in  force  at  the  time :  Spaulding  v.  Vin- 
cent, 24  Vt.  501.  A  copy  of  the  civil  code  of  France,  purporting  to  be  printed 
at  the  royal  press  in  Paris,  and  received  in  the  course  of  our  international 
exchange,  with  the  indorsement  "  La  Garde  des  Sceaux  de  France  a  la  Cour 
Supreme  des  Etats  Unis,"  is  admissible  in  the  courts  of  the  United  States  as 
evidence  of  the  law  of  France:  Ennis  v.  Smith,  14  How.  (S.  C.)  400.  The  writ- 
ten or  statute  laws  of  a  foreign  government  must  be  verified  in  the  same  manner 
as  foreign  judgments — by  the  exemplification  of  a  copy  under  the  great  seal  of 
state  or  by  a  sworn  cojjy.     The  national  seal,  affixed  to  the  exemplification  of  a 


281  DOCUMENTS     OF     A     PUBLIC     NATURE. 

the  articles  of  war  so  published  are  evidence  of  them,''  and  copies 
of  royal  proclamations  purporting  to  be  so  printed  are  evidence  even 
■without  proof  that  they  were  in  fact  so  printed. °  The  rules,  orders, 
and  regulations  of  the  poor-law  commissioners  may  be  proved  by  a 
copy  printed  by  the  Queen's  printer,  which  copy  after  fourteen  days 
from  its  date  shall  be  received  in  evidence  and  judicially  noticed,  and 
shall  be  sufficient  proof  that  it  was  duly  made  and  is  in  force,  until 
the  contrary  be  shown.*^ 

The  journals  of  the  House  of  Lords  have  always  been  admitted  as 
evidence  of  their  proceedings,  even  in  criminal  cases  ;^  and  those  of 
the  House  of  Commons  are  also  admissible  for  the  same  purpose.* 
r*9Q.->-i  The  Parliament  *roll  or  journal  is  the  usual  evidence  of  a 
sitting  in  the  House  of  Lords.**  And  where  the  enrolments 
and  journals  are  wanting,  a  memorandum  on  a  Parliament  roll  of  a 
grant  to  the  king  by  certain  "magnates  et  proceres"  named  therein, 
was  held  to  be  evidence  of  one  of  them  having  sat  as  a  peer.'  A 
writ  of  summons  as  a  peer  to  Parliament  is  proved  by  the  enrolment 
of  it.'  The  journals  have  been  received  by  a  committee  of  privileges 
to  prove  the  limitations  in  a  patent  of  peerage,  without  calling  for 
the  patent  itself.'  An  unstamped  copy  of  the  minutes  of  the  rever- 
sal of  a  judgment  in  the  House  of  Lords,  without  more  of  the  pro- 
ceedings, is  evidence  of  the  reversal,'  The  journals  of  the  House  of 
Lords  are  evidence  to  prove  an  address  of  the  house  to  the  king,  and 
his  answer,''  in  order  to  support  an  averment  in  an  information,  that 
certain  differences  had  existed  between  the  Kins;  of  Eno;land  and  the 
King  of  Spain.  But  the  journals  are  not  evidence  of  particular  facts 
stated  in  the  resolutions,  which  are  not  a  part  of  the  proceedings  of 
the  house.     L^pon  the  indictment  of  Oates  for  perjury,  a  resolution 

"  R.  V.  Withers,  5  T.  R.  446.     See  note  (/.■),  supra. 

=  8  &  9  Yict.  c.  113,  s.  3. 

17  &  8  Vict.  c.  101,  s.  71. 

®  See  Jones  V.  Randall,  Cowp.  17;  R.  v.  Lord  George  Gordon,  Doug.  593; 
Lord  Melville's  case,  29  IIow.  St.  Tr.  549. 

•>  Hastings'  Peerage,  8  CI.  &  F.  144. 

*  Lord  Dufferin's  case,  4  CI.  &  Fin.  568. 

^FranJcUn's  case,  9  St.  Tr.  259,  cited  by  Bullcr,  J.,  5  T.  R.  445;  and  see  4 
St.  Tr.  376,  445  ;  Doug.  593. 

foreign  law  or  judicial  proceeding,  proves  itself:  Watson  v.  Walker,  3  Fost.  471. 
The  enrolled  acts  of  the  legislature,  when  signed  b}'  the  pi*esiding  officers  of 
the  two  houses  and  by  the  Governor,  and  filed  among  the  archives  of  tlie  State, 
like  the  parliament  rolls  in  England,  are  records  and  import  absolute  verity  : 
Green  v.  Weller,  32  Miss.  650. 


ANCIENT     SURVEYS.  282 

of  the  House  of  Commons  of  the  existence  of  a  Popisli  plot  was  re- 
jected as  evidence  of  tlie  fiict.'  Nor  is  a  copy  of  an  inscription  on  a 
tombstone,  which  copy  was  made  from  the  minutes  of  a  committee  of 
privileges,  evidence  in  another  case."  In  KyioUys  case  it  was  held, 
that,  upon  a  plea  in  abatement  tliat  the  party  was  a  peer,  a  replica- 
tion was  bad,  which  alleged  that  the  peerage  had  been  disallowed  by 
the  Lords."  Copies  of  the  journals  of  either  house  purporting  to  be 
printed  by  the  printers  to  the  Crown  or  to  either  house,  are  now  evi- 
dence, without  proof  that  they  were  so  printed."  ^ 

*A11  public  acts  done  by  the  Crown  affecting  the  posses-  r*9Qq-| 
sions  and  revenues  of  the  Crown,  are  to  be  considered  as 
public  Acts,  and  are  admissible  in  evidence  as  such.^  An  enrolment 
of  a  lease  of  lands  belonging  to  the  Crown  in  right  of  the  Duchy  of 
Lancaster  is  admissible,P  on  account  of  the  interest  of  the  Crown  in 
the  duchy  and  its  revenues.  So,  examined  copies  of  expired  leases 
by  the  Crown,  deposited  in  the  oflBce  of  his  Majesty's  Land  Records 
and  Enrolments,  pursuant  to  stat.  2  Will.  IV.,  c.  1,  were  admitted  to 
establish  the  title  of  the  Crown  to  lands  to  which  such  documents  re- 
lated.''    A  book  in  which  leases  were  enrolled  and  kept  in  the  custody 

'  E.  V.  Gates.  10  How.  St.  Tr.  1079,  "  Vm(x  Peerage,  4  CI.  &  F.  526. 

°  2  Salk.  509.  "  8  &  9  Vict.  c.  113,  s.  3. 

p  Kianersleij  v.  Orpe,  Doug.  56 ;  and  see  13  M.  &  W.  475. 

"i  Doe  clem.  King  William  IV.  v.  Roberts,  13  M.  &  W.  520.  Enrolments,  or 
examined  copies  of  enrolments,  deeds,  certificates,  receipts,  or  other  instruments 
purporting  to  set  forth  a  copy  of  the  whole,  or  part  thereof,  and  to  be  signed 
and  certified  by  the  keeper  of  the  records  of  the  Duchy  of  Cornwall,  or  of  Lan- 
caster, shall,  without  producing  the  original,  or  calling  any  attesting  witness, 
and  in  the  case  of  a  certified  copy,  without  other  proof  than  the  production  of 
the  certificate  that  such  a  copy  is  a  true  one,  be  admitted  in  all  legal  proceedings 
to  be  proof  of  such  original  instrument,  or  enrolment  thereof,  or  of  so  much  as 
the  copy  purports  to  set  forth,  and  that  the  original  was  duly  made,  granted, 
given,  or  executed  by  the  parties  thereto:  7  &  8  Vict.  c.  65,  and  11  &  12  Vict, 
c.  83. 

^  The  votes  of  the  Assembly  and  minutes  of  Council  have  been  admitted,  in 
Pennsylvania,  to  prove  the  time  of  the  notification  of  the  repeal  of  an  Act  of 
Assembly,  by  the  King  in  Council :  Lessee  of  Albertson  v.  Robeson,  1  Dall.  9. 
The  printed  journals  of  Congress  have  also  been  allowed  to  be  read  in  evidence 
without  proof  of  their  authenticity  :  Comm.  v.  Longchamp,  Philada.  1784,  MS. 
Norris"s  Pcake  84,  n.  M. 

^  A  printed  copy  of  public  documents  transmitted  to  Congress  by  the  Presi- 
dent of  the  United  States,  and  printed  by  the  printer  to  Congress,  is  evidence: 
per  Kent,  C.  J.,  Radcliffe  v.  United  Insurance  Co.,  7  Johns.  38.  In  this  case 
tlue  printed  copy  of  a  letter  from  the  British  Secretary  of  State  to  the  American 
ambassador  was  ofl'ered  as  evidence  of  the  existence  of  a  blockade.  M. 


283  DOCUMENTS     OF    A     PUBLIC     NATURE. 

of  the  auditor  of  the  Bishop  of  Durham  (who  is  a  patent  officer  within 
the  county  palatine),  is  a  public  muniment.  And  therefore  where 
search  had  been  ineffectually  made  for  an  original  lease  to  a  lessee 
under  the  bishop,  and  the  counterpart,  it  was  held  that  such  book  was 
admissible  as  secondary  evidence  of  such  lease." 

A  caption  of  seisin  taken  to  the  use  of  the  first  Duke  of  CornAvall 
by  persons  assigned  by  his  letters  patent  for  that  ^purpose, 
L  ~  J  was  held  admissible  as  a  public  Act  in  evidence  to  show  the 
rights  of  the  duchy.' 

An  instrument  under  the  great  seal  of  Scotland,  produced  from  the 
repository  of  the  heir  of  entail  of  the  family  property,  was  admitted 
by  the  House  of  Lords  as  evidence  of  the  creation  of  a  peer,  with 
limitation  in  tail  as  therein  stated,  in  the  absence  of  any  patent  of 
creation.* 

Surveys,  taken  under  authority,  are  also  evidence.  Domesday- 
hook  was  a  survey  made  of  the  king's  lands  in  the  time  of  William 
the  Conqueror ;"  and  when  a  question  arises  whether  a  particular 
manor  be  of  ancient  demesne  or  not,  that  is,  of  the  socage  tenures 
which  were  in  the  hands  of  Edward  the  Confessor,  the  trial  is  by  in- 
spection of  the  Domesday-book,  which  is  preserved  in  the  Exchequer.^ 

'  Humble  v.  ILmt,  Holt's  C.  (3  E.  C.  L.  R.)  601.  A  book  produced  from  the 
chapter-house  of  the  dean,  &c.,  of  S.,  kept  by  the  chapter-clerk,  and  purporting 
to  contain  copy  of  leases,  &c.,  granted  by  the  dean,  &c.,  held  to  be  in  the  nature 
of  a  public  document,  and  admitted  in  evidence  to  prove  reputation  as  to  boun- 
dary of  a  parish:  Cootnbs  v.  Coether,  M.  &  M.  (22  E.  C.  L,  R.)  39S ;  and  see 
Humble  V.  Hunt,  above  cited. 

°  Eowe  V.  Brenton,  8  B.  &  C.  (15  E.  C.  L.  R.)  743.  And  the  same  rules  are 
applicable"  whether  the  lands  and  revenues  are  at  any  particular  time  vested  in 
the  Duke  of  Cornwall  or  the  King.  Held,  therefore,  that  as  the  enrolment  of 
a  lease  in  the  duchy  office  would  be  good  evidence  of  a  lease,  if  the  Crown 
alone  were  interested,  it  was  equally  so  in  the  case  of  a  lease,  by  the  Duke : 
Ibid.  750. 

'  HunthT/  Peerage,  5  CI.  &  F.  349. 

"  The  public  in  general,  and  the  legal  profession  more  especially,  are  greatly 
indebted  to  Sir  II.  Ellis  for  his  most  valuable  and  instructive  work  on  Domes- 
day ;  a  record  in  which  the  lawyer,  the  antiquary,  and  the  historian  possess  one 
common  interest.  Some  curious  particulars  connected  with  the  compilation  of 
Domesday  are  to  be  found  in  Ingulphus's  History  of  Croyland.  Ingulphus,  the 
abbot  and  learned  historian  of  his  own  abbey,  and  the  early  friend  of  William 
the  Conqueror,  relates,  with  satisfaction,  that  the  possessions  of  the  abbey  were 
underrated  ;  and  his  statement  fairly  affords  the  inference  that  this  was  not  a 
solitary  instance  of  the  kind.  A  tax,  or  census,  proportioned  to  the  possessor's 
revenues,  would  j)robably  be  suspected  as  one  motive  for  compiling  such  a 
document. 

»  Hob.   188;  Gilb.  Law  of  Ev.  G'J,  Gth  cd.  ;  Trial  per  Tais  342;  Bac.  Ab., 


ANCIENT     SURVEYS  —  INQUISITIONS.  284 

Frequent  changes  in  the  names  of  places  render  evidence  for  the  pur- 
pose of  identification  very  important/  *It  has  been  hchl  p^fj^r-i 
that  a  variance  between  the  modern  name  and  that  contained  L  *-'  J 
in  Domesday  ought  to  be  averred  on  the  record/  This  ancient  sur- 
vey seems  to  be  generally  admissible  as  to  all  matters  which  it  contains 
in  respect  of  manors,  and  as  to  ancient  local  divisions  or  boundaries, 
the  tenure  or  occupation  of  manors,  lands,  or  mills  ;  as  also  to  matters 
of  pedigree,  and  other  immemorial  rights  or  circumstances  which  arc 
the  subject  of  proof. 

In  the  Exchequer  also  is  another  ancient  survey,  which  ascertained 
the  extent  of  the  king's  ports. *^ 

The  valor  benejiciorum,  a  valuation  of  the  profits  of  spiritual  pre- 
ferments made  under  a  commission  from  Pope  Nicholas  III.,  and 
completed  A.  D.  1292,  and  known  also  by  the  title  of  Pope  Nicholas's 
Taxation,  is  still  preserved  in  the  Exchequer,  in  the  Office  of  the 
Queen's  Remembrancer.  In  applying  the  restrictive  clause  in  the 
statute  21  Hen.  VIII.,  c.  13,  concerning  pluralities,  and  the  ex- 
emptions from  it,  to  college  livings,  their  value  is  ascertained  by 
this  survey.^  When  the  first  fruits  and  tenths,  on  the  abolition  of 
the  papal  power,  were  annexed  to  the  Crown,  a  new  valor  r*9op-i 
heneficioruyn  *was  made,  by  which  the  clergy  are  at  present 
rated.''     Tliis  valuation ^was  made  by  commissioners  under  the  great 

Ev.  F.  A  very  faithful  copy  of  this  document  has  lately  been  printed  by  the 
government. 

y  See  an  instance  cited,  2  Phil.  Ev.  580,  9th  edit.,  where  the  manor  of  Bowden 
was  identified  with  that  of  Bugedine,  in  Domesday,  by  means  of  old  deeds.  In 
the  case  o^  Alcock  v.  Cooke,  cited  Ibid.,  the  question  turned  on  what,  according 
1.0  the  correct  mode  of  reading  Domesday,  was  parcel  of  the  manor  of  Grantham, 
and  whether  the  effect  of  a  red  line  drawn  through  the  words  ''  Hythe  Wapen- 
take" denoted  an  error,  or  was  for  the  purpose  of  drawing  attention. 

^  Grecfori/  v.  Williams,  28  C.  2;  Gilb.  Law  of  Ev.  44 ;  3  Keb.  588. 

»  Gilb.  Law  of  Ev.  69  ;  Bac.  Ab.,  Ev.  F. 

^  2  Lut.  1305 ;  Humphreys  v.  Knight,  Cro.  Car.  455  ;  Stamp  v.  Ayliffe,  2  Gwill. 
536.  See  the  First  Report  of  the  House  of  Commons  on  Public  Records.  This 
taxation  is  evidence  of  the  value  at  which  those  employed  to  make  it  estimated 
the  living.  See  Bulleuv.  Milchell,  2  Price  477.  And  all  taxes  due  to  the  king, 
as  well  as  the  pope,  were  regulated  by  it.  As  to  the  effect  of  this  and  other 
such  surveys,  and  also  as  to  minister's  accounts,  see  Vol.  II.,  tit.  Tithes.  It  has 
been  frequently  asserted  that  this  valuation  was  too  low :  see  Weston  v.  Vaiighton, 
2  Phil,  on  Ev.  104,  9th  ed.,  in  which  Lord  Tenterden  observed  that  it  had  been 
generally  supposed  that  Pope  Nicholas's  valuation  was  too  low;  see  also  Chap- 
man y.  Smith,  2  Ves.  sen.  506 ;  Bree  v.  Beck,  1  C.  ■&  J.  267 ;  6  Price  483. 

*  1  Bl.  Com.  285.  This  valor  beneficiorum  is  commonly  called  the  King^s 
books,  a  transcript  of  whiuh  is  given  in  Bacon's  Liber  Regis,  and  in  Ecton's 
Thesaurus. 


286  DOCUMENTS     OF    A     PUBLIC     NATURE. 

seal,  who,  in  executing  this  duty,  seem  to  have  calculated  the  value 
of  the  first  fruits  and  tenths,  without  regarding  any  modus  or  other 
legal  exemption.  A  survey,  dated  15(13,  from  the  First-fruits  Office, 
of  the  possessions  of  the  nunnery  of  St.  Mary  without  the  walls  of 
York,  was  admitted  to  prove  a  vicar's  right  to  certain  tithes,  although 
the  original  commission  was  lost.^  Parliamentary  surveys  under  the 
Commonwealth  are  also  admissible ;"  and  where  the  originals  have 
been  lost,  as  many  were  at  the  time  of  the  great  fire  of  London, 
copies  of  them,  taken  from  unsuspected  repositories,  have  also  been 
admitted.^  So  great  is  the  reputed  accuracy  of  these  surveys,  that 
their  silence  as  to  an  alleged  modus  has  been  considered  to  be  strong 
evidence  against  its  existence.^ 

Another  ancient  record  is  the  inquisitiones  nonarum,  which  was 
taken  in  the  reign  of  Edward  III.,  by  commissioners  under  the  great 
seal,  upon  the  oath  of  the  parishioners  in  every  parish,  in  order  to 
ascertain  the  value  of  the  ninth  of  corn,  wool  and  lambs  in  every 
parish,  a  grant  having  been  made  by  Parliament  in  the  14th  year  of 
the  reign  of  that  sovereign.*" 
^^  On  the  same  ground  an  inquisition  taken  in  1730,  by  *the 

direction  of  the  House  of  Commons,  has  been  received  as 
conclusive  evidence  of  the  tenure  and  fees  of  the  difierent  oflSces 
to  which  it  relates.'  And,  as  it  seems,  upon  the  same  principle,  in- 
quisitions under  public  commissions,  but  of  limited  extent,  have  also 
been  received,  as  in  the  case  of  Tooker  v.  The  Duke  of  Beaufort,^ 
where  it  was  held  that  a  return  to  a  commission  out  of  the  Exche- 
quer, in  the  reign  of  Elizabeth,  to  inquire  whether  the  prior  of  St. 
Swithin,  or  the  Crown,  after  the  dissolution  of  the  priory,  were  seised 
of  certain  lands,  was  evidence.     So,  in  the  case  of  Doe  v.  ITarcourt,^ 

*  Kellinyton  v.  Master,  tfcc,  of  Trinity  College,  Cambridge,  1  Wills.  1 70 ;  Under- 
hill  V.  Durham,  2  Gwill.  542. 

*  Blundcll  V.  Howard,  1  M.  &  S.  292 :  see  infra,  note  [p). 

f  Underhill  v.  Durham,  2  Gwill.  542 ;  4  Dow.  297  ;  Green  v.  Proiide,  1  Mod. 
117. 

8  Blundell  v.  ILnmrd,  1  M.  &  S.  292 ;  Rex  v.  Ireland,  1 1  East  284. 

'■  The  corninissionors  were  to  levy  the  ninth  in  every  parish,  according  to  the 
rate  at  which  churches  were  taxed,  (viz.,  by  Pope  Nicholas's  Taxation,)  if  the 
value  of  the  ninth  amounted  to  so  much,  but  if  not,  then  only  accordinf^  to  the 
true  value.     See  the  Report  of  the  Commissioners  of  Public  Records,  App. 

'  Green  v.  Hewett,  Peake,  C.  182;   Peake,  Ev.  85,  3d  ed. 

"  Burr.  148  ;  Irish  Society  v.  Bp.  of  Derry,  12  CI.  &  F.  (Ul.  But  a  return  to 
a  coiniiiisHion,  not  si^rned  or  sealed,  is  inadmissiljle,  for  non  constat,  it  was  pot  a 
draft:    Slaue  Peerage,  5  CI.  &  F.  24. 

'  I'cake,  Kv.  S4  ;  and  see  Carr  v.  Mostyn,  5  Ex.  G9. 


ANCIENT    SURVEYS  —  INQUISITIONS.  287 

it  was  held  that  a  survey  of  land,  belonging  to  the  prebend  of  the 
Moor  of  St.  Paul's,  Avas  admissible  evidence  against  the  lessees  of  the 
prebendary. 

An  ancient  extent  of  Crown  lands,  produced  from  the  proper  place 
of  deposit  (the  Lord  Treasurer's  Remembrancer's  Office,)  purporting 
to  have  been  taken  by  the  steward  of  the  King's  lands,  and  follow- 
ing in  its  construction  the  stat.  4  Edw.  I.,  was  held  to  be  admissible, 
on  the  presumption  that  it  had  been  taken  under  proper  authority, 
although  the  commission  could  not  be  found."^  So  an  extent  or  sur- 
vey of  Crown  lands,  purporting  to  have  been  made  in  the  time  of 
Edw.  III.,  by  the  steward  of  the  Crown  lands,  and  found  in  the 
Office  of  Land  Revenue  Records,  is  evidence  of  the  title  of  the 
Crown  thereto."  But  on  a  question  as  to  the  boundary  of  a  manor, 
formerly  part  of  the  Duchy  of  Lancaster,  a  document  of  the  time 
of  Elizabeth,  produced  from  the  Duchy  Office,  purporting  to  be  a 
survey  of  the  manor,  taken  by  the  deputy  of  the  Surveyor-General 
of  the  duchy  under  letters  of  deputation  *from  him,  by  the  r*9oo-| 
oaths  and  presentments  of  tenants  of  the  manor,  whose 
names  were  subscribed,  and  who  were  therein  called  jurors  at  the 
Court  of  Survey,  and  containing  a*  statement  of  the  boundaries,  a 
list  of  tenants  and  rents,  and  a  presentment  of  the  demesnes,  of  cus- 
toms, of  injuries  suggested,  and  some  other  particulars,  no  authority 
for  taking  it  being  proved,  was  held  not  admissible,  either  as  a  sur- 
vey taken  under  4  Edw.  I.,  st.  1,  or  as  evidence  of  reputation  ;  the 
statute  not  authorizing  the  tenants  to  find  the  boundaries."  So  a 
book  purporting  to  be  a  survey  of  the  lordship  of  Gower,  made  in 
1650,  by  authority  of  Oliver  Cromwell,  after  a  grant  by  Parliament 
of  that  lordship  to  him,  stating  a  presentment  by  the  jury  of  cer- 
tain payments  as  due  to  the  lord,  but  not  signed  by  them,  no  com- 
mission for  making  it  being  proved,  was  held  not  admissible  as  a 
public  document,  or  as  evidence  of  reputation.  But  the  court  seemed 
to  doubt  the  correctness  of  the  decision  in  the  last-mentioned  case 
upon  the  question  of  the  admissibility  of  the  document  therein  men- 
tioned as  evidence  of  reputation. ^ 

Inquisitions    post  mortem  appear    originally  to    have    been  taken 
before  justices   in   Eyre    upon  the  deaths  of    the  king's  tenants  in 

^  Eowe  V.  Brenton,  8  B.  &  C.  (15  E.  C.  L.  R.)  747;  and  see  Lord  Carnarvon 
V    VUlehois,  13  M.  &  AV.  532. 

°  DQe  dem.  King  William  IV.  v.  Roberts,  13  M.  &  W.  520. 
"  Ei-ans  V.  Taylor,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  617. 
P  Dul<e  of  Beaufort  v.  Smith,  4  Ex.  451. 
18 


288  DOCUMENTS     OF    A     PUBLIC    NATURE. 

capites  The  stat.  1  Hen.  VIII.,  c.  8,  enacts,  that  these  shall  be 
taken  on  tlie  oaths  of  twelve  men,  and  in  open  places.  These  were 
afterwards  placed  under  the  jurisdiction  of  the  Court  of  Wards  and 
Liveries,  erected  in  the  32d  and  33d  year  of  Hen.  VIII.  Upon 
the  abolition  of  this  court,  together  with  the  military  tenures 
from  which  they  sprung,  the  practice  of  taking  such  inquisitions 
ceased. 

Such  inquisitions   thus  made  under  authority  are   admissible,  and 
r*9QQ-i    ^^6  most  important,''  although   not  conclusive  *evidence'  of 
their  contents ;  but  where  the  proceedings  appear  to  have 
been  irregular,  such  inquisitions  are  not  receivable  in  evidence.' 

It  is  not  essential  to  the  admissibility  of  evidence  of  this  nature 
that  the  inquiry  should  have  been  made  by  means  of  witnesses  ex- 
amined on  oath  ;  it  is  sufficient  that  it  was  made  by  virtue  of  com- 
petent authority  on  behalf  of  the  public,  and  on  a  subject-matter  of 
public  interest. 

It  is,  however,  of  the  very  essence  of  evidence  of  this  nature  that 
the  inquiry  should  have  been  made  under  proper  authority  ;  in  gene- 
ral, therefore,  unless  the  authority  be  in  its  nature  notorious,  it  must 
be  proved  by  the  production  of  the  commission,  as  in  the  case  of  an 
inquisition  post  mortem,  and  such  private  offices."  And  in  other 
cases,  where  it  may  be  presumed  that  the  commission  under  which 
the  depositions  were  taken  has  been  lost,  they  may  be  read  without  its 
production.''  And  in  cases  of  general  concern,  such  as  the  ministers' 
returns  to  the  commission  in  Henry  the  Eighth's  time  to  inquire  into 
the  value  of  livings,  the  party  is  not  bound  to  give  in  proof  the  com- 
mission,y  and  it  would  be  attended  with  great  inconvenience  and  ex- 
pense to  oblige  parties  to  take  copies  of  the  whole  record.  Where 
an  inquisition  has  been  taken  without  legal  authority  it  is  inad- 
missible.* 

9  See  2  Bla.  Com.  68.     Vol.  II.,  tit.  Pedigree. 

^  Lord  Mansfield  observed,  in  Birt  v.  Barlow,  Dougl.  171,  that  it  is  easier  to 
establish  a  pedigree  for  five  centuries  before  the  time -of  Charles  the  Second  than 
for  one  century  afterwards. 

'  Per  Lord  Ilardwickc,  in  Sergeson  v.  SeaJei/,  2  Atk.  412;  Lord  Thanet  v. 
Foratcr,  Jones  224 ;  and  see  the  observations  of  Bayley,  B.,  in  Beck  v.  Bree,  1 
C.  &  J.  256. 

*  See  Cruise  on  Dignities,  c.  6,  s,  60;  and  Vol.  II.,  tit.  Pedigree. 

°  B.  N.  P.  228 ;  Evans  v.  Tai/lor,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  617. 

*  Bayley  v.  Wylie^  6  Esp.  C.  85 ;  Roice  v.  Brenton,  post,  pp.  292,  293,  note  [t). 
'  Bayley  v.  Wyiie,  6  Esp.   C.  85  ;    Vicar  of  KiUiiujdni  v.   Trinity   College,    1 

Wils.  170. 

'  Sec  below,  Latkow  v.  Earner,  2  II.  B.  437;   Glossop  v.  Pole,  3  M.  &  S.  175. 


TERRIERS    AND     SURVEYS.  289 

Similar  to  these  in  their  nature,  but  differing  in  point  of  authority, 
are  ohl  terriers,  or  surveys,  whether  ecclesiastical  or  temporal,  which 
are  admissible  to  prove  old  tenures  *or  boundaries.*  Such  r^Qoni 
boundaries  are  artificial  and  arbitrary,  and  cannot  be  estab- 
lished by  the  testimony  of  eye-witnesses ;  in  such  cases,  therefore, 
unless  surveys  of  antiquity  and  of  authority  were  admissible,  all  evi- 
dence would  frequently  be  excluded.  It  is  however  necessary  to 
clothe  such  evidence  with  some  authority,  in  order  to  distinguish  it 
from  the  mere  inaccurate  description  made  by  a  stranger*"  for  purposes 
unknown.  Ecclesiastical  terriers,  which  contain  a  detail  of  the  tem- 
poral possessions  of  the  church  in  every  parish,  are  made  by  virtue 
of  an  ecclesiastical  canon,"  which  directs  them  to  be  kept  in  the 
bishop's  registry,*^  or  the  registry  of  the  archdeacon  of  the  diocese,* 
and  it  is  not  unusual  to  deposit  a  copy  in  the  chest  of  the  parish 
church.^  These  being  made  under  authority  are  admissible  evidence, 
as  a  species  of  ecclesiastical  memorials  or  records  of  the  possessions 
of  the  church,  and  are  as  strong  in  their  nature  as  any  that  can  be 
adduced  for  such  purposes.^ 

Terriers  are   admissible   not   only  in   suits  between   landowners  on 
one  side  and  the  parson  on  the  other,  but  also  *in  suits  be-    r^oq-i-i 
tween  a  vicar  and  impropriator.^     A  terrier  is  always  strong 
evidence  against   the  parson,  but  not  for  him,  unless  it  has  been 
signed  by  the  churchwardens  also,  or   (if  they  be  nominated  by  him) 

»  B.  N.  P.  248  ;  Bac.  Ab.,  Ey.  F.  ;  Gilb.  Law  of  Ev.  70;  Chapman  v.  Coidan, 
13  East  10.  An  unsigned  map,  or  terrier,  is  not  evidence :  Earl,  Clerk,  v.  Lewis, 
4  Esp.  C.  1  ;  though  it  purport  to  have  been  taken  by  competent  authority,  and 
have  been  generally  received  as  authentic :  Pollard  v.  Scott,  Peake  18,  cor.  Lord 
Kenyon ;  and  see  AtJcins  v.  Watson,  2  Anstr.  386;  Ltjgon  v.  Strutt,  Ibid.  601. 
Old  surveys  and  maps,  although  not  ecclesiastical,  may  also  be  admitted  under 
similar  circumstances  as  terriers :  Earl  v.  Lewis,  4  Esp.  1  ;  Pollard  v.  Scott, 
Peake  19 ;  Wakeman  v.  West,  7  Car.  &  P.  (32  E.  C.  L.  11.)  479  ;  Doe  v.  Lakin, 
Ibid.  481. 

''  See  the  principle,  supra,  p.  260.  "^  87th. 

*  Atkins  V.  Hatton,  4  Gwill.  1406  ;  2  Anstr.  386  ;  Pulley  y.  Hilton,  12  Price  625. 

«  Potts  V.  Durant,  4  Gwill.  1450. 

'  Armstrong  v.  Hewett,  4  Price  218. 

'  Drake  Y.  Smyth,  3  Price  369;  Toymbee  v.  Broimi,  3  Ex.  117;  and  see  that 
case  as  to  their  effect.  AVhere  for  a  long  series  of  years  80Z.  a  year  had  been 
paid  as  compensation  in  lieu  of  tithe,  the  Court  of  Exchequer  held  that  it  would 
be  unreasonable  to  give  any  weight  to  a  terrier  signed  in  1822,  describing  that 
payment  as  free  from  taxes  and  parochial  assessments. 

^  lUinguiorth  v.  Leigh,  4  Gwill.  1615;  Potts  v.  Durant,  3  Anstr.  789.  As  to 
the  effect  of  terriers  in  evidence,  see  Atkins  v.  Drake,  M'Clel.  &  Y.  214 ;  Lake  v. 
Skinner,  1  J.  &  W.  9  ;  Stuart  v.  Grenall,  9  Price  106  ;  Vol.  II.,  Tithes. 


291  DOCUMENTS    OF    A     PUBLIC     NATURE. 

by  some  of  the  substantial  inhabitants,  without  which  it  deserves  (it 
is  said)  little  credit.'  A  terrier  imperfect,  because  it  has  not  been 
signed  by  the  vicar,  is  still  admissible.''  Upon  a  question  of  title 
between  the  vicar  and  rector,  a  terrier,  signed  by  the  churchwardens, 
but  not  by  the  vicar,  was  held  to  be  not  only  admissible,  but  to  be 
even  stronger  evidence  for  the  successor  than  if  it  had  been  signed 
by  the  vicar  for  the  time  being;  and  it  was  held  to  be  no  objection, 
that  it  was  not  signed  by  any  one  who  claimed  under  the  rector.^ 
Old  terriers,  signed  by  the  rector,  churchwardens,  overseers,  and 
some  of  the  resident  parishioners,  were  held  to  be  good  evidence  for 
the  rector,  to  rebut  the  presumption  of  a  farm-modus  which  was  at- 
tempted to  be  established,  although  such  terriers  were  not  proved  to 
have  been  signed  by  any  person  interested  in  the  farm." 

It  is,  in  general,  essential  to  the  reception  of  ancient  instruments 
of  this  kind,  and  indeed  of  all  others,  whether  they  be  of  a  public  or 
private  nature,  such  as  public  surveys,  inquisitions,  or  ancient  deeds, 
that  the  authority  of  the  document  should  be  established  by  the  only 
r*9Q9"i  ^'^^  ^^  proof  of  which  it  is  in  general  capable ;  that  is,  by 
*proof  that  it  came  out  of  the  proper  repository."  A  docu- 
ment, purporting  to  be  an  endowment  by  a  bishop,  but  without  his 
seal,  and  an  inspeximus  of  the  bishop  under  his  seal,  were  rejected, 
because  they  came  out  of  the  hands  of  a  mere  private  person."  In 
the  case  of  Michell  v.  Habbetts,^  it  was  held  that  an  ancient  grant  to 
an  abbey,  in  a  manuscript,  entitled  -^^  Seer etu7n  Abbatis,"  kept  in  the 
Bodleian  Library  at  Oxford,  was  inadmissible,  for  want  of  proof  of 
proper  custody.  On  this  authority  also,  it  was  held  by  Lawrence, 
J.,  that  an  ancient  grant  to  a  priory,  found  amongst  the  Cottonian 
Manuscripts  in  the  British  Museum,  without  proof  of  connection  be- 
tween  the   possession   of  the   grant,  and   an   interest  in  the  estate,** 

'  B.  N.  P.  248 ;  Earl  v.  Lewis,  4  Esp.  C.  1. 

MGwill.  1615. 

^  IlUncjworth  v.  Leiyh,  4  Gwill.  1615. 

"^  Mytton  V.  Harris,  8  Price  19,  Wood,  B.,  dissentiente.  He  ap;i'eed  that,  as 
to  such  terriers  as  affected  the  parish  generally,  it  would  be  sufficient  if  they 
were  signed  by  any  of  the  parishioners ;  but  held  that  their  signing  a  terrier 
would  not  make  it  admissible  to  affect  a  farm-modus. 

°  See  post.  Some  person  should  prove  that  they  come  from  the  proper 
custody  ;  mere  production  by  the  counsel  or  the  party  is  not  generally  enough  : 
Evatis  V.  Eees,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  151 ;  but  see  Doe  v.  Phillips,  8  Q. 
B.  (55  E.  C.  L.  R.)  158 ;  Doe  v.  Keeling,  11  Q.  B.  (63  E.  C.  L.  R.)  884. 

»  Potts  V.  Durant,  4  Gwill.  1450. 

P  Cited  3  Taunt.  91. 

■i  Swinnerton  v.  Marquis  of  Hlafford,  3  Taunt.  91  ;  Earl  v.  Lewis,  4  Esp.  C.  1. 


TERRIERS  —  PROOF    AS    TO     CUSTODY.  292 

could  not  be  received  in  evidence.  But  it  is  not  necessary,  in  order 
to  render  a  document  admissible,  that  it  should  come  from  the  most 
proper  custody ;  it  is  sufficient,  if  it  come  from  a  place  where  it  may 
reasonably  be  expected  to  be  found. "^ 

Papers  delivered  by  the  son  of  a  deceased  rector  to  the  successor's 
attorney,  as  old  parish  documents,  are  sufficiently  identified  by  the 
attorney,  without  calling  the  son,°* 

An  ancient  extent  of  crown  lands  found  in  the  proper  office,  and 
purporting  to  have  been  taken  by  a  steward  of  the  king's  lands, 
and  following  in  its  construction  the  direction  of  the  stat.  4  Edw.  I., 
will  be  presumed  to  have  *been  taken  under  proper  autho-  r-ooon 
rity,  although  the  original  commission  cannot  be  found.' 

To  show,  therefore,  the  authenticity  of  ecclesiastical  terriers,  it 
must  be  proved  that  they  were  found  in  the  proper  repository,  the 
bishop's  registry,  or  that  of  the  archdeacon  of  the  diocese ;"  or 
proof  must  be  given  to  establish  a  connection  between  the  terrier  and 
the  place  in  which  it  was  found.  As  against  a  prebendary  of  Lich- 
field, a  terrier  found  in  the  registry  of  the  dean  and  chapter  of  Lich- 
field was  held  to  be  admissible,^  on  the  ground  that  the  terrier  was 
sufficiently  connected  with  the  place  in  which  it  was  found,  and  be- 
cause it  was  found  annexed  to  an  old  and  nearly  cotemporary  lease.'' 
And  a  terrier  from  the  custody  of  a  person  who  was  the  owner  of  the 
tithes  of  a  district  of  the  parish,  has  been  held  to  be  admissible.* 
So  terriers  produced  in  support  of  a  modus  on  the  part  of  the  land- 
So  it  must  be  proved  that  records,  when  produced,  come  out  of  the  proper 
custody:  1  Stark.  C.  (2  E.  C.  L.  R.)  183. 

"■  Crompton  v.  Blake,  12  M.  &  W.  205;  see  Bishop  of  Meath  v.  Marquis  of 
Winchester,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  183 ;  Doe  v.  Phillips,  8  Q.  B.  (55  E. 
C.  L.  R.)  158. 

*  Earl  V.  Lewis,  4  Esp.  C.  1. 

'  Bowe  V.  Brenton,  8  B.  &  C.  (15  E.  C.  L.  R.)  737. 

"  Atkins  V.  Hatton,  2  Anstr.  386 ;  Miller  v.  Foster,  Ibid.  387,  in  note  ;  4  Gwill. 
1406,  1593. 

*  Miller  v.  Foster,  2  Anstr.  387,  in  note ;  4  Gwill.  1406, 
y  4  Gwill.  1453. 

*  Tucker  v.  Wilkins,  4  Sim.  241.  It  is  otherwise  where  the  possession  is 
merely  private,  and  unconnected  with  the  subject-matter:  Potts  v.  Durant,  4 
Gwil.  1450. 

^  Where  a  book  of  records  of  the  proprietors  of  common  lands  (the  proprie- 
tary being  extinct)  was  produced  by  a  person  to  whom  it  was  delivered  by  his 
grandfather's  executor,  who  had  the  possession  of  it  for  thirty  years,  it  was  held 
that  the  book  was  admissible  in  evidence :  Tolman  v.  Emerson,  4  Mass.  R. 
160.  G. 


293  DOCUMENTS     OF    A    PUBLIC    NATURE. 

owners  by  the  son  of  the  registrar  of  the   diocese  who  was  also  a 

solicitor  in   general  practice,  and  who   stated  that  he  got  them  from 

the  office  where  the   general  business   of  his  father  was  carried  on, 

were  held    admissible,  though    there  was  a  muniment  room    in  the 

cathedral,  and  it  did    not  appear  that  the  terriers   had   ever   been 

deposited   there/     Yet  one  found    in    the  charter-chest  of    Trinity 

College,  Cambridge,  which  had  property  in  the  parish,  was  held  to  be 

inadmissible.'' 

The  king's  sign-manual,  authorizing  the   release  of  a  prisoner,  is 

^ ,    evidence  to  prove  the  legality  of  his  being  at  large."     *But,  in 

r  2941  .  .  a  &  ' 

^  "     -■    general  the  certificate  by  the  king  of  a  matter  of  fact  under 

his  sifjn-manual  is  not  admissible  in  evidence.*^ 

The  license  of  the  pope,  during  his  supremacy  in  this  kingdom,  is 
evidence  of  an  impropriation. *  So  his  bull  has  been  admitted  to  show 
that  lands  belonging  to  a  monastery  were  discharged  of  tithes  at  the 
time  of  the  dissolution.^  But  it  is  said  that  a  copy  of  a  bull  is  not 
evidence.^  So  an  endowment  by  a  bishop,  under  his  seal,*"  would  be 
evidence,  if  derived  from  the  proper  custody. 

Certificates,'  and  other  documents  made  by  persons  entrusted  with 
authority  for  the  purpose,  may  also  be  considered  as  public  docu- 
ments, and  they  are  evidence  against  all  to  the  extent  of  the  officer's 
authority,  of  the  facts  which  he  is  directed  to  certify,  but  not  further.'' 
For,  where  the  law  has  appointed  a  person  to  act  for  a  specific  pur- 
pose, the  law  must  trust  him  as  far  as  he  acts  under  his  authority.' 
Therefore  the  endorsement  of  the  officer  upon  a  deed  of  bargain  and 
sale  is  evidence  of  its  enrolment.™  And  so  is  the  indorsement  on  a 
deed  under  the  Mortmain  Act."     The  chirograph  of  a  fine  is  evidence 

»  CrougUon  v.  Blake,  12  M.  &  W.  205. 

*>  Atkins  V.  Hatton,  2  Anstr.  386  ;  4  Gwill.  1406. 

"  Milhr^s  case,  Leach,  C.  C.  L.,  3d  edit.  69. 

<»  By  Willes,  L.  C.  J.,  in  Omichund  v.  Barker,  Willes  550;  2  Roll.  Abr.  686, 
H.  Althouj^h  in  one  old  case  such  evidence  was  admitted,  no  exception  being 
taken:  Ahignye  v.  Clifton,  Hob.  213. 

«  Cope  v.  Bedford,  Palm.  427 ;  Gilb.  Law  of  Ev.  69  ;  Bac.  Abr.,  Ev.  F. 

'  Lord  Clanrickard'' s  case.  Palm.  38. 

*  Brett  V.  Ward,  Winch.  70  ;  but  qu.,  ante. 

^  Potts  V.  Durant,  4  Gwill.  1450  ;  3  Anstr.  789. 

'  See  further,  as  to  certificates,  Vol.  II.,  tit.  Certificate. 

■^  Omichund  v.  Barker,  Willes  549. 

•  B.  N.  P.  229. 

"  Kinnersley  v.  Orpe,  Douf;.  57. 

°  Under  the  Mortmain  Act,  9  Geo.  II.  c.  3",  the  deeds  conveying  the  lands 
must  be  enrolled  in  the  Court  of  Chancery  within  six  calendar  months  after  its 


CERTIFICATES  —  DOCUMENTS.  295 

of  *tbe   fine,  because  the  officer  is    appointed    to  give  out    ^ ^^ 

.  r  2951 

copies  of  the  agreements  between  the  parties  that  are  lodged    '-          ^ 

of  record.  Wherever  it  is  an  essential  part  of  the  oflBcer's  duty  to 
deliver  out  copies  of  a  record,  such  copies  are  evidence."  But  if  it 
be  not  his  duty,  such  certificates  or  copies  are  not  evidence.''  Where 
a  court  has,  for  its  own  convenience,  appointed  officers  to  make  out 
copies,  such  copies  are  evidence  in  that  Court  without  further  proof, 
but  not  elsewhere.  Thus  an  office  copy  of  depositions  is  admissible 
in  equity,  without  examination  Avith  the  roll,  but  is  not  receivable  in 
a  court  of  law.**  By  the  7  &  8  Will.  III.,  c.  7,  s.  5,  the  entry  in  the 
book  kept  by  the  clerk  of  the  Crown  for  entering  returns  of  members 
to  serve  in  Parliament,  and  alterations  and  amendments,  or  a  copy 
of  so  much  as  relates  to  the  return,  is  made  evidence  thereof  in  an 
action  for  a  false  or  double  return.  So,  by  many  other  statutes,  au- 
thorized entries  and  documents,  which  will  be  noticed  in  their  proper 
places,  are  made  evidence.'' 

*With  respect  to  all  these  and  some  other  documents,  it  r:j:.oqf^-i 
has  been  enacted  by  8  &  9  Vict.  c.  113,  that  "  whenever  by 

execution.  A  conveyance  of  this  kind  was  offered  in  evidence,  having  an  in- 
dorsement purporting  to  be  a  memorandum  of  the  enrolment  of  the  indenture  in 
Chancery  on  a  certain  day,  and  to  be  signed  by  one  who  was  proved  to  be  clerk 
of  the  enrolment,  although  not  so  described  in  the  indorsement.  The  Court 
ascertained,  by  inquiry,  that  it  was  the  practice  in  the  Enrolment  Office  for  the 
officer,  when  he  makes  the  enrolment,  to  deliver  back  the  original  deed  with  the 
certificate  of  enrolment  indorsed  upon  it,  and  held,  that  the  indorsement  was 
evidence  both  of  itself,  and  of  the  fact  which  it  purported  to  state  :  Doe  clem. 
Williams  and  others  v.  Lloyd,  1  M.  &  G.  (39  E.  C.  L.  R.)  671 ;  and  see  now  the 
statute,  ante,  p.  263. 

"  See  Black  v.  Lord  Brai/brooke,  2  Stark.  C.  (3  E.  C.  L.  R.)  7,  ]3  ;  and  see 
below,  tit.  Judgments — Judicial  Documents. 

P  Roberts  v.  Eddington,  4  Esp.  88  ;  Setcell  v.  Corp,  1  C.  &  P.  (12  E.  C.  L.  R.) 
392;  Drake  v.  Marryat,  1  B.  &  C.  (8  E.  C.  L.  R.)  473  ;  Waldron  v.  Coombe,  3 
Taunt.  162 ;  B.  v.  Seicell,  8  Q.  B.  (55  E.  C.  L.  R.)  161  -,  see  Brown  v.  Thornton, 
6  Ad.  &  E.  (33  E.  C.  L.  R.)  185. 

1  B.  N.  P.  229 ;  Black  v.  Lord  Braybrooke,  2  Stark.  C.  (3  E.  C.  L.  R.)  6  ; 
Burnand  v.  Nerot]  1  Car.  &  P.  (12  E.  C.  L.  R.)  578  ;  but  see  ante,  p.  261. 

*■  See  14  &  15  Vict.  c.  6,  s.  16,  as  to  examinations  under  Mutiny  Act ;  also  5  & 
6  Geo.  IV.  c.  84,  s.  24,  and  7  &  8  Geo.  IV.  c.  28,  s.  11,  as  to  certificates  of  indict- 
ments and  convictions.  Where,  upon  a  question  as  to  the  delivery  of  a  cask  of 
whiskey,  the  court  below  had  decided  it  upon  the  effect  of  extracts  from  the  excise 
book,  and  the  certificate  of  a  commissioner  of  excise,  as  to  the  accuracy  of  the 
books  from  vrhich  such  extracts  were  taken,  the  House  of  Lords  reversed  the 
judgment,  as  having  been  decided  upon  inadmissible  evidence.  Excise  books, 
as  public  documents,  might  be  received  ;  or  if,  on  account  of  public  convenience, 
the  originals  could  not  be  produced,  examined  copies  on  oath  might  be  pro- 
duced :  Dunbur  v.  Harvie,  2  Bli.  351. 


295  DOCUMENTS     OF    A     PUBLIC    NATURE. 

any  statute  then  or  afterwards  to  be  in  force,  any  certificate,  oflBcial 
or  public  document,  or  document  or  proceeding  of  any  corporation, 
or  joint-stock  or  other  company,  or  any  certified  copy  of  any  docu- 
ment, by-law,  entry  in  any  register  or  other  book,  or  of  any  other 
proceeding,  shall  be  receivable  in  evidence  of  any  particular  in  any 
court  of  justice,  or  before  any  legal  tribunal,  or  either  House  of 
Parliament,  or  any  Committee  of  either  House,  or  in  any  judicial 
proceeding,  the  same  shall  be  admitted  in  evidence,  provided  they 
respectively  purport  to  be  sealed  or  impressed  with  a  stamp,  or 
sealed  and  signed,  or  signed  alone,  as  required,  or  impressed  with  a 
stamp  and  signed,  as  directed  by  the  respective  Acts  made  or  to  be 
hereafter  made ;  without  any  proof  of  the  seal  or  stamp  where  a  seal 
or  stamp  is  necessary,  or  of  the  signature,  or  of  the  official  character 
of  the  person  appearing  to  have  signed  the  same,  and  without  any 
further  proof  thereof,  in  every  case  in  which  the  original  record 
could  have  been  received  in  evidence.  "° 

Public  registers,  although  not  originally  intended  for  the  purposes 
of  evidence,  are  generally  admissible  in  support  of  the  facts  to  which 
they  relate,  for  they  are  made  by  persons  in  an  official  situation,  whose 
duty  it  is  to  make  the  entries  accurately  of  the  facts  immediately 
within  their  knowledge.'     These  are,  the  registers  kept  in  churches," 

»  Sect.  1. 

'  There  are  a  great  number  of  public  books  directed  to  be  kept  by  various 
statutes,  which  on  these  grounds  are  evidence ;  a  list  of  some  of  them  may  be 
found,  2  Taylor  on  Ev.,  p.  1053. 

°  These  were  originally  instituted  at  the  instigation  of  Lord  Cromwell,  who 
(temp.  Hen.  VIII.)  was  Vicar-General  to  the  King,  and  before  whom  all  wills 
to  the  value  of  201.  were  to  be  proved.  This  appointment  was  afterwards  con- 
firmed by  the  injunction  of  Edward  VI.,  who  directed  that  the  registering 
should  be  in  the  presence  of  the  parson  and  churchwardens,  on  a  Sunday,  and 
that  the  book  should  be  kept  locked  in  the  church,  the  vicar  and  churchwardens 
having  keys:  see  Salk.  281;  Gilb.  Law  of  Ev.  76.  The  Marriage  Act,  26  Geo. 
II.  c.  33,  8.  14,  directed  that,  immediately  after  the  celebration  of  every 
marriage,  an  entry  thereof  should  be  made  in  a  register,  in  which  it  should  be 
expessed  that  the  marriage  was  celebrated  by  banns  or  license  ;  and  if  both  or 
either  of  tlie  parties  married  by  license  wore  under  age,  with  consent  of  parents 
or  guardians,  as  the  case  might  be  ;  and  should  be  signed  by  the  minister  with 
his  proper  addition,  and  also  by  the  parties  married,  and  attested  by  two  credi- 
ble witnesses.  This  form,  however,  was  directory  only,  and  an  examined  copy 
of  a  marriage  regularly  attested  by  one  witness  only,  under  this  statute,  was 
admissible:  Doc  dem.  Blayney  v.  Sewage,  1  C.  &  K.  (47  E.  C.  L.  R.)  487.  By 
the  stat.  52  Geo.  III.  c.  146,  s.  7,  registers  of  baptism,  marriages  and  burials 
were  directed  to  be  kept  by  the  officiating  clergyman  in  a  particular  form,  and 
copies  of  these  I'egisters,  verified  by  the  officiating  minister  of  the  parish,  were 


[*298] 


REGISTERS     OF    BAPTISMS,     MARRIAGES,     ETC.  297 

*of  baptisms,   marriageSy^   and  burials,'"  and  by  the  regis-    r^i)nn-\ 

trars    of  births,    deaths,    and    marriages.^  ^      Although    the 

*entries  are  first  made  in  a  day-book  of  a  church  register, 

such  day-book  is  not  evidence  when  the  entry  has  been  made 

in  the  register/     And  therefore,  where  in  the  day-book  the  letters  B. 

B.  were  added,  which  were  explained  to  be  base-born,  but  were  not 

added  in  the  subsequent  entry  in  the  register,  the  court  held  that  the 

directed  to  be  transmitted  annually  by  the  churchwardens,  after  they  or  one 
of  them  should  have  signed  the  same,  to  the  registrar  of  the  diocese  ;  and  these 
provisions  as  to  baptisms  and  burials,  are  still  in  force :  see  6  &  7  Will.  IV.  c. 
86,  ss.  1  and  49.  Provisions  of  a  similar  nature  had  been  made  by  the  canons 
of  1603,  but  these  prescriptions  had  fallen  into  disuse,  see  3  Burn's  Ecc.  Law 
459  ;  Gibson's  Codex  204;  and  Vol.  II.,  tit.  Marriage. 

'  By  6  &  7  Will.  IV.  c.  86,  the  provisions  before  in  force  under  52  Geo.  III.  c. 
146,  and  4  Geo.  IV.  76,  are  repealed  from  the  1st  of  March,  1837  ;  but  the  pro- 
visions as  to  baptisms  and  burials  are  continued,  sects.  1  and  49.  By  that 
statute,  hoAvever,  marriage  registers  are  to  be  provided  for  every  church  and 
chapel  in  vrhich  marriages  may  be  solemnized,  and  also  for  Quakers'  chapels 
and  Jewish  synagogues,  in  duplicate,  one  to  be  kept  by  the  officiating  clergy- 
man or  person,  and  the  other  to  be  returned  to  the  registrar-general,  see  ss.  30, 
31.  A  register  of  marriages  kept  in  Barbadoes  is  evidence  of  a  marriage,  being 
required  by  law  to  be  kept,  and  an  examined  copy  has  been  received  in 
evidence :  Good  v.  Good,  1  Curt.  755. 

'  Sid.  71 ;  Godb.  145. 

^  By  6  &  7  Will.  IV.  c.  86,  provisions  are  made  for  the  registry  of  births, 
deaths  and  marriages  by  registrars  throughout  the  country,  in  a  full  form  con- 
taining various  particulars  given  in  the  schedule  to  the  Act,  which  are  to  be  sup- 
plied by  various  persons  within  a  certain  time,. and  under  certain  penalties  for 
giving  false  information.  A  general  register  office  for  England  is  established 
in  the  metropolis,  and  by  s.  38,  the  Registrar-General  is  to  cause  "  to  be  sealed 
or  stamped  with  the  seal  of  the  register  office  all  certified  copies  of  entries  given 
in  the  said  office  ;  and  all  certified  copies  of  entries  purporting  to  be  sealed  or 
stamped  with  the  seal  of  the  said  register  office  shall  be  received  as  evidence  of 
the  birth,  death  or  marriage  to  which  the  same  relates,  without  any  further  or 
other  proof  of  such  entry  ;  and  no  certified  copy  purporting  to  be  given  in  the 
said  office  shall  be  of  any  force  or  efi'ect  which  is  not  sealed  or  stamped  as 
aforesaid." 

y  May  V.  May,  Str.  1073.  per  Probyn  and  Lee,  Js.,  Page,  J.,  dissentiente :  see 
Walker  v.  Wingjield,  18  Ves.  443. 

^  As  to  the  admissibility  of  such  registers  or  sworn  copies  see  5  Peters  470; 
Kingston  v.  Lesley,  10  S.  &  R.  383  ;  Hyam  v.  Edwards,  1  Dall.  2 ;  Stoever  v. 
Whitman's  Lessee,  6  Binn.  416;  Sumner  v.  Sebec,  3  Greenl.  223;  Wedgicood^s 
case,  8  Greenl.  75 ;  Marti7i  v.  Gunhy,  2  Harr  &  John.  248 ;  Jackson  v.  King,  5 
Cow.  237  ;  Jackson  v.  Boneham,  15  Johns.  226.  Entries  in  a  family  Bible  are 
admissible  to  prove  the  deaths  of  members  of  the  family :  Hunt  v.  Johnson,  19 
N.  Y.  279. 


298  DOCUMENTS     OF     A     PUBLIC     NATURE. 

entry  in  tlie  register  could  not  be  controlled  or  altered  by  the  entry 
in  the  day-book,  for  there  could  not  be  two  registers  in  the  same 
parish.^  An  entry  in  the  register  of  baptism  by  a  minister,  of  the 
baptism  of  a  child  which  had  taken  place  before  he  became  minister, 
and  made  on  the  information  of  the  clerk,  is  not  admissible  evidence, 
neither  is  the  private  memorandum  of  the  clerk,  who  was  present  at 
the  baptism  ;*  nor  is  a  parish  register  produced  by  the  parish  clerk 
without  explanation  of  his  possession  of  it,  for  it  is  not  produced  from 
the  *proper  custody,  parish  registers  being  directed  by  statute 
'-  "^     -^    to  be  kept  by  the  clergyman.'' 

A  register  is  evidence,  even  between  strangers,  as  to  the  time  of 
marriage.''  And  a  statement  in  the  church  register  that  a  child  was 
base-born  has  been  received  in  evidence.^  But  the  church  register 
is  no  proof  of  the  identity  of  the  parties ;°  nor  is  it  evidence  that  a 
party  was  of  the  particular  age  stated  in  the  register/  nor,  without 
evidence  to  show  that  the  party  was  young  when  christened,  is  it  evi- 
dence that  he  was  born  within  the  parish. 

The  books  of  the  Fleet  Prison  are  not  admissible  in  evidence  to 
prove  a  marriage,  for   they  are   not   made  under  public  authority.^ 

^  May  V.  Maij^  Str.  1073  ;  Lee  v.  Meecock,  5  Esp.  C.  177.  If  the  entry  in  the 
day-book,  which  represented  the  plaintiff  to  be  illegitimate,  had  been  made 
under  the  direction  of  the  reputed  father  and  mother,  the  evidence  "would,  it 
seems,  have  been  admissible  as  the  declaration  of  a  deceased  parent.  In  the 
absence  of  such  evidence,  it  appeared  to  be  nothing  more  than  a  private 
memorandum,  made  for  the  purpose  of  assisting  the  clerk  to  make  up  the 
registei'. 

«  Doe  V.  Brmj,  8  B.  &  C.  (15  E.  C.  L.  R.)  813. 

"  Doe  dem.  Arundle  v.  Fowler,  19  L.  J.,  N.  S.,  Q.  B.  151. 

"  Doe  v.  Barnes,  1  M.  &  Rob.  386. 

**  Cope  V.  Cojje,  1  M.  &  Rob.  269 ;  being  evidence  of  reputation.  It  was  there 
said  that  similar  evidence  had  been  received  in  a  prior  case :  Morris  v.  Davis, 
3  Car.  &P.  (14  E.  C.  L.  R.)  215. 

"Birt  V.  Barloiv,  1  Doug.  170;  Bain  v.  Masoti,  1  C.  &  P.  (12  E.  C.  L.  R.)  202; 
Barber  v.  Holmes,  3  Esp.  190:  see  tit.  Polygamy — Marriage.  As  to  how  the 
identity  may  be  proved,  see  Sar/er  v.  Glossop,  2  Ex.  409. 

'  Wihen  v.  Law,  3  Stark.  (3  E.  C.  L.  R.)  63  ;  E.  v.  Clapham,  4  Car.  &  P.  C. 
(19  E.  C.  L.  R.)  29  ;  R.  v.  North  Petherton,  5  B.  &  C.  (11  E.  C.  L.  R.)  508  ; 
Burfjhart  v.  Anr/erstein,  6  C.  &  P.  (25  E.  C.  L.  R.)  690;  Duins  v.  Donovan,  3 
Hag.  301;  li.  V.  Luhhenham,  5  B.  &  C.  (11  E.  C.  L.  R.)  968;  R.  v.  St. 
Katherine,  Ibid.  970.  But  under  the  Registration  Act,  if  the  place  of  birth  or 
death  be  added  by  direction  of  the  Registrar-General,  the  register,  it  would 
seem,  is  evidence  thereof:  6  &  7  Will.  IV.  c.  86,  s.  38  ;  7  Will.  IV.  &  1  Vict.  c. 
22,  8.  8. 

«  Reed  v.  Passer,  Pcake,  C.  231  ;  Doc  dem.  Orrel  v.  Madox,  1  Esp.  197 ;  Uatj- 


REGISTERS     OF    BAPTISMS,     MARRIAGES,     ETC.         300 

Nor  is  the  copy  of  a  register  *of  a  forei^rn   chapel  admissi-    ^    . 

ble  here  to  prove  a  marriage  abroad.''  Nor  a  copy  of  an  ^  J 
entry  in  the  book  kept  at  the  British  Ambassador's  in  Paris,  wherein 
his  chaplain  makes  and  subscribes  entries  of  all  marriages  celebrated 
by  him.'  Neither  is  the  copy  of  a  register  of  baptism  in  Guernsey  ;•* 
nor  the  register  of  a  dissenting  chapel.''  Nor  an  entry  of  the  cir- 
cumcision of  a  Jewish  child,  made  in  a  book  kept  in  the  synagogue 
by  the  Chief  Rabbi,  since  deceased,  who  performed  the  rite,  which 
entry  was  made  in  the  course  of  his  duty.^  But  by  stat.  3  &  4  Vict. 
c.  92,  certain  registers  of  births,  baptisms,  deaths,  burials  and  mar- 
riages, are  directed  to  be  deposited  with  the  Registrar-General,  and, 
subject  to  certain  provisions  as  to  giving  notice  to  the  opposite  party, 
are  *made  evidence  in  all  cases ;  and  certified  extracts,  sub- 
ject to  similar  provisions,  are  likewise,  except  in    criminal 


[*301] 


wood  V.  Firmin,  Peake,  C.  23^  ;  Hoioard  v.  Burtonwood,  Ibid.  n. ;  Cooke  v. 
Lloijd,  Ibid. ;  Doe  v.  Gatacre,  8  C.  &  P.  (34  E.  C.  L.  R.)  578.  But,  semhle,  that 
on  a  question  o(  pedigree,  the  books  of  the  Fleet  are  evidence  to  show  the  name 
by  which  a  woman  passed  when  she  was  married  there :  Lawrence  and  others 
V.  Dixon,  Peake  136;  1  Esp.  213.  And  in  Doe  v.  Lloyd,  Shrewsb.  Sum.  Ass., 
Heath,  J.,  admitted  them  in  evidence :  see  Peake  Ev.  87.  These  books,  and 
the  i-egisters  of  marriages  performed  at  the  King's  Bench  Prison,  at  May  Fair, 
and  the  Mint,  &c.,  have  been  purchased  by  government,  and  are  deposited  in 
the  office  of  the  Registrar-General,  under  3  &  4  Vict.  c.  92,  but  by  express  ex- 
ception (ss.  6  and  20)  are  not  thereby  made  receivable  in  evidence.  The  Fleet 
Books  contain  the  original  entries  of  marriages  solemnized  in  the  Fleet  Prison 
from  1686  to  1784 ;  Phillips  on  Ev.,  Vol.  II.,  p.  595,  9th  ed. 

^  Leader  v.  Barry,  1  Esp.  353  ;  see  further,  Vol.  II.,  tit.  Marriage. 

'  Athlone  Peerage,  8  CI.  &  Fin.  262.  As  to  proof  of  foreign  marriages,  see 
infra,  note. 

J  Huet  V.  Le  Mesurier,  1  Cox  275  ;  but  see  as  to  this,  1  Curt.  766. 

^  For  it  is  not  a  public  document:  Newham\.  Baithhy,  Phill.  315.  A  register 
of  baptism  of  the  child  of  a  dissenter  (twenty -five  years  after  the  alleged  birth), 
containing  the  words,  "  said  to  be  born,"  &c.,  being  mere  hearsay  and  informa- 
tion, and. therefore  of  no  assistance  in  establishing  the  fact,  was  refused  to  be 
allowed  to  remain  as  a  part  of  the  proceedings :  Duins  v.  Donovan,  3  Hag. 
301.  An  entry  of  the  birth  of  a  dissenter's  child,  in  a  book  kept  at  Dr.  Wil- 
liam's Library  in  Redcross  Street,  was  held  to  be  inadmissible  evidence :  Ex 
parte  Taylor,  1  J.  &  W.  483.  The  books  of  baptisms,  marriages  and  deaths  iu 
India,  must  be  brought  from  their  place  of  deposit  at  the  India  House :  Taylor 
on  Ev.  1055.  In  order  to  establish  the  determination  of  a  life  estate,  hearsay 
evidence  of  the  death  of  the  cestui  que  vies  is  not,  as  in  a  case  of  pedigree,  suf- 
ficient ;  nor  is  the  register  of  a  dissenting  chapel,  or  an  inscription  on  a  tomb- 
stone in  the  adjacent  burial  ground,  receivable  :  Whittuck  v.  Waters,  4  C.  &  P. 
(19  E.  C.  L.  R.)  375. 

•  Davis  V.  Lloyd,  1  C.  &  K.  (47  E.  C.  L.  R.)  275. 


301  DOCUMENTS     OF    A     PUBLIC     NATURE. 

P^qA9-i    proceedings,  rendered  evidence  in  every  court  of  justice."* 

*The  rule  as  to  proof  of  marriages,  &c.,  by  the  registers  in 

the  absence  of  living  witnesses  has  been  held  not  to  apply  to  Ireland, 

where  such  registers  have   not  been  duly  kept."     But  now  certified 

"'Under  this  statute,  (see  9  Car.  &  P.  (38  E.  C.  L.  R.)  793),  the  following 
registers  have  been  made  evidence  : 
The  Registers  of  the  French  Churches  in  Enghmd,  commencing  in  the  year  1567. 

"  German  Chapels  "  "  "         1669. 

''  Dutch  Chapel  Royal      "  "  "         1689. 

"  .     Swiss  Church  "  "  "         1762. 

"  Presbyterians  throughout  Eng- 

land and  Wales,  "  '<         1642. 

"  Independents,  "  "         1644. 

"  Baptists,  "  "         1642. 

"  Scotch  Churches  in  England,  "  "         1758. 

"  Society  of  Friends  throughout 

England  ^nd  AVales,  "  "         1644. 

"  Wesleyan  Methodists,  ♦  "  "         1772. 

"  Methodists,  New  Connection,  "  "         1787. 

*<  Primitive  Methodists,  "  "         1813. 

"    -  Bible  Christians,  "  "         1817. 

"  Inghamites,  '•  "         1753. 

"  Moravians,        ,  "  "         1742. 

"  Lady  Huntingdon's  Connection,        "  "         1752. 

"  Calvinistic  Methodists,  "  "         1762. 

"  Swedenborgians  throughout 

England  and  Wales,  "  "         1787. 

The  Registers  from  Dr.  William's  Library  in  Red- 
cross  Street,  «'  "         1742. 

"  The  Paternoster  Row  Registry,  "  "         1808. 

The  Bunhill  Fields'  Register,  "  "         1713. 

The  Registers  of  the  Liverpool  Necropolis,  "  "         1825. 

"  Deadman's  Place  Cemetery, 

Southwark,  "  "         1738. 

"  Leeds  Cemetery,  "  "         1835. 

"  Walworth  Burial  Ground,  "  "         1819. 

"  Ecclesall  Cemetery,  "  "         1834. 

"  Norwich  Cemetery,  "  "         1821. 

"  Roman    Catholic    Chapels   of 

about  one-third  of  England. 
The  sections,  which  provide  for  the  admission  of  the  originals  or  certified  copies 
of  these  registers,  are  the  9th  to  the  19th.  By  these,  notice  must  be  given  by 
the  one  party  to  the  other,  either  at  law  or  in  equity,  of  his  intention  to  use  the 
particular  matter  in  evidence,  and  a  certified  extract  must  be  sent  a  reasonable 
time  before  tlie  trial  or  hearing.  A  certified  copy  under  the  seal  is  rendered 
sufficient  evidence  in  all  save  criminal  cases,  in  which  cases  the  original  must 
be  produced.     These  provisions  are  too  long  to  insert  in  full. 

°  Vaux  Peerage,  5  CI.  &  Fin.  526 ;   Earl  of  EoscommQn' s  claim,  6  CI.  & 
Fin.  07. 


REGISTERS — UOAV     PROVED.  302 

copies  of  the  register  of  marriages  in  Ireland,  deposited  in  the  Gene- 
ral Register  Office  in  Dublin,  are  evidence,"  and  moreover  the  regis- 
ters of  marriages  kept  by  consuls  abroad,  and  copies  of  them  trans- 
mitted to  the  Registrar-General  in  England,  as  well  as  certified 
copies  of  them,  are  now  rendered  admissible  in  evidence. ^ 

An  entry  in  a  register,  like  any  other  public  document,  may  be 
proved  by  means  of  an  examined  copy;'^^  and  it  is  of  course  unne- 

"7  &8  Vict.  c.  81,  ss.  52,  71. 

P  By  12  &  13  Vict.  c.  68,  consuls  abroad  are  authorized  to  solemnize  marriages, 
of  which  (s.  11)  they  are  to  keep  a  re.irister  in  duplicate  ;  one'  copy  is  to  be  (s. 
12)  presented  to  the  Registrar  of  Births,  Marriages  and  Deaths  in  England ; 
and  (s.  18)  that  Act  is  to  be  taken  as  part  of  6  &  7  Will.  IV.  c.  86,  and  every 
consul  shall  be  deemed  a  registrar  under  that  Act ;  and  all  provisions  of  that 
Act  relating  to  any  registrar,  or  register  of  marriages,  or  certified  copies  thereof, 
shall  be  taken  to  extend  to  the  registers  of  marriages  under  this  Act,  and  to  the 
certified  copies  thereof,  so  far  as  the  same  are  applicable  thereto.  In  any  action 
or  suit  for  foreclosure,  or  prosecution  for  perjury  under  the  Act,  the  declaration 
and  certificate  of  the  consul,  under  his  hand  and  consular  seal  (s.  17)  is  rendered 
good  evidence. 

•1  Birt  V.  Barlow,  1  Doug.  173.  "  They  are  in  the  nature  of  recoi'ds,  and  need 
not  be  produced  or  proved  by  subscribing  witnesses  :"  per  Lord  Mansfield,  Ibid. ; 
see  52  Geo.  III.  c.  146,  s.  17.  Qu.,  however,  whether  they  can  be  proved  by  oral 
evidence :  per  BuUer,  J.,  2  Evans's  Poth.  139. 

^  A  copy  of  the  register  of  the  births  and  deaths  of  the  Society  of  Quakers 
in  England,  proved  before  the  Lord  Mayor  of  London,  was  admitted  in  evidence 
in  Pennsylvania,  to  prove  the  death  of  a  person :  Lessee  of  Hyavi  v.  Edwards, 
1  Dall.  2.  So  the  registry  of  any  religious  society  in  that  State,  is  evidence  by 
statute ;  but  it  must  be  proved  at  common  law.  A  copy  certified  under  the  seal 
of  the  corporation  is  not  evidence:  Stoever  v.  Lessee  of  Whitman,  6  Binn.  416. 
In  North  Carolina,  a  parish  register  of  marriages,  births  and  deaths,  kept  pur- 
suant to  a  statute  of  that  State  is  good  evidence  to  prove  pedigree,  and  that  the 
several  persons  whose  pedigree  is  thus  proved,  are  within  the  savings  of  the 
Statute  of  Limitations  :  Jacocks  v.  Gilliam,  2  Murphy  47.  The  record  of  a  bap- 
tism, made  by  a  parish  minister,  who  was  dead,  has  been  received  in  evidence 
in  Connecticut :  Huntley  v.  Comstock,  2  Root  99.  And  in  Massachusetts,  a 
certified  copy  of  the  record  of  the  clergyman  or  justice  of  the  peace  is  constantly 
admitted  in  evidence  to  prove  a  marriage.  A  sworn  copy  of  the  records  of  a 
town  in  Connecticut,  wherein  were  contained  the  date  of  tlie  marriage  of  the 
parents  of  the  plaintiff,  and  the  time  of  the  birth  of  their  children,  was  held  to 
be  admissible  evidence  by  the  Supreme  Court  of  New  York  :  Jackson  v.  Boneham, 
15  Johns.  226.  A  copy  of  such  record  certified  by  the  clerk  of  the  town,  if 
within  the  State  is  received  in  evidence  without  objection,  in  Massaebnsetts.  M. 

A  book  found  in  the  nands  of  the  town  clerk  and  purporting  to  be  a  record  of 
births  and  marriages  in  the  town,  has  been  held  in  Maine  to  he  prima  facie 
evidence  of  the  facts  it  contains,  as  for  example  of  the  age  of  a  person  :  Sumner 
V.  Sebec,  3  Greenl.  223.  '  I. 

As  to  family  records  see  North  Brookfield  v.  Warren,  82  Mass.  171.     In  order 


302  DOCUMENTS     OF     A     PUBLIC    NATURE. 

cessary  to  give  any  proof  by  means  of  the  subscribing  witnesses, 
or  to  prove  their  handwriting,  although  the  register  be  produced.' 
Even  where  the  object  is  to  prove  the  identity  of  a  person  named 
in  the  register,'  and  this  is  done  by  a  witness  who  swears  to 
|-^qAq-i  *li'S  handwriting  in  the  register,  an  examined  copy  is  suffi- 
cient. It  has  been  held  at  Nisi  Prius,'  that  annual  returns 
made  to  the  registry  of  the  diocese,  according  to  the  requisitions  of 
the  70th  canon,  are  admissible  only  as  secondary  evidence,  but  that 
returns  made  under  the  stat.  52  Geo.  III.,  c.  146,  would  be  prov- 
able by  examined  copies  of  originals.  A  copy  taken  from  a  book 
produced  by  the  parson  of  a  parish,  as  being  the  parish  register, 
upon  application  made  to  him  for  it,  will  be  sufficient."  But  if  to 
such  application  he  reply  that  there  is  no  such  register  for  the  par- 
ticular year,  that  will  not  be  evidence  of  loss  sufficient  to  let  in 
secondary  evidence.'^  Entries  in  registers  kept  under  the  General 
Registry  Act  may  be  proved  by  certified  copies  under  the  office 
seal.'" 

Other  parish  books  are  also  receivable  in  evidence  in  certain 
cases ;  thus,  in  an  action  for  the  disturbance  of  the  plaintiff  in  the 
use  of  his  pew  at  church,  an  old  entry  made  in  the  vestry-book  by 
the  churchwardens,  stating  that  the  pew  had  been  repaired  by  the 
owner  of  a  messuage  under  whom  the  plaintiff  claimed,  was  ad- 
mitted as  evidence  of  the  right,  having  been  made  as  to  a  fact  within 
the  scope  of  the  churchwarden's  office,  and  being  evidence  of  the 
reputation  in  the  parish  as  to  the  right. "^     An  entry  in  a  vestry-book 

""  Birt  V.  Barloic,  Doug.  173  ;  see  Drake  v.  Smyth,  5  Price  369. 

'  Sai/er  v.  Glossop,  2  Ex.  409. 

*  Walker  v.  Beauchamp,  6  C.  &  P.  (25  E.  C.  L.  R.)  552  ;  Wihen  v.  Law,  3 
Stark.  (3  E.  C.  L.  R.)  63;  Doe  dem.  Wood  v.  Wllkins,  2  Car.  &  K.  (61  E.  C.  L. 
R.)  328. 

"  Walker  v.  Beauchamp,  6  C.  &  P.  (25  E.  C.  L.  R.)  552.  But  a  copy  of  a  book, 
produced  simply  by  the  clerk,  would  not  be  ;  supra,  note. 

"  Ibid. 

'  See  ante,  p.  297,  note  (x)  ;  p.  302,  note  (o),  {]})  ;  p.  301,  note  (w),  where  see 
an  exception. 

"^  Price  V.  Littlewood,  3  Camp.  288  ;  see  Vol.  II.  tit  Pew. 

to  render  admissible  an  entry  of  births  or  deaths  in  a  family  Bible  or  record, 
the  decease  of  the  parent  making  it  must  be  shown:  Greenleafv.  Dubuque  R. 
It.  Co.,  30  Iowa  301.  A  church  record  of  baptisms  is  admissible  :  Kennedy  v. 
Doyle,  10  Allen  101.  An  entry  in  a  parish  register  of  a  child's  baptism  is  not 
♦;videnco  of  the  identity  of  such  child;  nor  is  the  recital  in  such  entry  of  the 
oliild's  age  sufficient  evidence  thereof  to  support  a  plea  of  infancy  :  Morrissey  v. 
Wiyyins  Ferry  Co.,  47  Mo.  521. 


REGISTERS — HOW    PROVED — PARISH     BOOKS.  303 

has  also  been  admitted  to  prove  an  averment  in  an  indictment  for  a 
libel,  that  the  prosecutor  liad  been  elected  treasurer  at  a  vestry  duly 
held  in  pursuance  of  notice/  An  ohl  book  produced  by  a  church- 
warden from  tlie  parish  chest,  in  which  the  names  of  the  surveyors 
*of  the  highways  were  stated,  was  received  by  Coleridge,  J.,  r^onj.-! 
to  prove  who  Avere  surveyors  at  that  time." 

But  on  an  appeal,  the  respondents,  in  order  to  prove  the  fact  of 
the  delivery  to  them  of  a  certificate  given  by  the  appellants, 
acknowledging  the  pauper  to  be  their  settled  inhabitant,  produced  an 
old  book  from  their  own  parish  chest,  in  which  was  an  entry  of  that 
fact  in  the  handwriting  of  a  former  parish  oflScer.  It  was  held 
that  such  evidence  was  inadmissible,  being  a  matter  discharging 
his  own  parish.* 

An  old  entry  in  a  vestry-book  is  not  admissible  on  the  part  of  the 
parishioners  to  show  that  they  have  the  right  concurrently  with  the 
rector  to  elect  to  a  parish  office,  there  being  nothing  to  show  that  the 
rector  was  present  at  the  meeting.^  But  such  entries  at  meetings 
where  the  rector  was  present  are  receivable." 

By  the  17  Geo.  II.,  c.  38,  s.  13,  copies  of  all  rates  and  assessments 
for  the  relief  of  the  poor  are  to  be  kept  in  a  book  by  the  church- 
wardens and  overseers  of  every  parish,  which  is  to  be  kept  in  a 
public  place  in  the  parish,  and  to  be  produced  at  the  sessions, 
when  any  appeal  is  to  be  heard.  In  the  case  of  the  Zoiich  peerage, 
a  parish  book  of  rates  and  loans  was  admitted  as  evidence  of  the 
existence  and  residence  of  a  party  in  the  parish  in  the  year  1649, 
by  the  entry  of  the  payment  of  her  subscription  to  a  parish  loan  in 
tJjat  year.** 

By  the  42  Geo.  III.,  c.  46,  the  churchwardens  and  overseers®  are 
to  keep  a  book  containing  the  names  of  all  *parish  apprentices, 
and  of  the  other  particulars  required  by  the  Act ;  the  entries    ^         J 

7  E.  V.  Martin,  2  Camp.  C.  100. 

'  R.  V.  Inhabitants  of  Pembridge,  Car.  &  M.  (41  E.  C.  L.  R.)  157. 

*  R.  v.  Dehenham,  2  B.  &  A.  185. 

^  Harthij  V.  Cooke,  5  C.  &  P.  (24  E.  C.  L.  R.)  441. 

"  Ibid. ;  and  extracts  from  the  register  of  the  Bishop  of  the  diocese  were  read 
to  prove  the  same  appointments. 

*  Printed  Evidence  162.  Entries  by  a  churchwarden  not  made  in  the  course 
of  his  official  duty,  and  by  which  he  does  not  charge  himself,  are  not  admissible  : 
Cooke  V.  Bankes,  2  C.  &  P.  (14  E.  C.  L.  R.)  478  ;  Taylor  v.  Devey,  7  Ad.  &  E. 
(34  E.  C.  L.  R.)  409. 

*  By  2  Geo.  III.  c.  22,  a  register  of  all  infants  in  workhouses  within  the  Bills 
of  Mortality,  with  their  names,  ages  and  other  description,  was  also  directed 
to  be  kept  by  these  oflScers. 


305  DOCUMENTS     OF    A    PUBLIC    NATURE. 

are  to  be  signed  bj  the  justices  wbo  assent  to  the  indentures  ;  and  when 
the  latter  are  proved  to  have  been  destroyed  or  lost,  such  register  is  to 
be  deemed  sufficient  evidence  in  all  courts  of  law  in  proof  of  the  ex- 
istence of  such  indentures,  and  of  the  other  particulars  specified  in  the 
register  ;  and  each  entry,  if  approved,  is  to  be  signed  by  the  justices, 
and  such  book  may  be  inspected  at  all  seasonable  hours,  and  a  copy 
taken,  if  the  indentures  are  lost  or  destroyed. 

The  register  of  the  Navy  Office,  made  up  from  the  captains'  returns, 
with  proof  of  the  method  there  used  to  enter  all  persons  dead  with 
the  letters  D  d,  is  evidence  of  such  death. ^  And  so  is  the  muster- 
book  transmitted  by  the  officers  of  the  ship  to  the  Navy  Office.^ 
The  book  kept  at  the  Sick  and  Hurt  Office,  in  which  are  copied  the 
different  returns  made  by  the  officers  of  the  navy,  of  persons  dying 
on  board,  is  evidence  to  show  the  time  of  a  seaman's  death.^  So  the 
log-book  of  a  man-of-war  which  convoyed  a  fleet,  is  evidence  to  prove 
the  time  of  sailing.'  ^  *But  the  log-book  of  a  merchantman 
L  -^  can  only  be  used  by  a  witness  to  refresh  his  memory,  with 
respect  to  a  fact  which  he  remembers  to  have  seen  there  at  a  time 
when  he  had  a  clear  recollection  of  the  circumstance.-"  Where  a  statute 
required  that  every  vessel  engaged  in  the  whale  fishery  should  carry 

f  B.  N.  P.  249  ;  Bac  Abr.,  Ev.  F. ;  R.  v.  Rhodes,  Leach,  C.  C.  L.  4th  ed.  24 ; 
R.  V.  Fitzgerald  and  Lee,  Ibid.  20. 
*  R.  V.  Fitzgerald  and  Lee,  Leach,  C.  C.  L.  20 ;  R.  v.  Rhodes,  Ibid.  24. 
^  Wallace,  Administrator,  v.  Cooke,  5  Esp.  C.  117.     But  where  the  wife  of  ^. 

B.  obtains  goods  after  stating  that  her  husband  is  dead,  it  is  not  a  suiBcient 
answer  to  an  action  for  the  amount,  to  show,  by  the  muster  of  a  ship  from  the 
Admiralty,  that  a  person  of  the  name  of  A.  B.  was  living  at  the  time :  Barber 
V.  Holmes,  3  Esp.  C.  190;  Kenyon,  C.  J.,  1800.  As  to  the  books  at  Lloyd's,  see 
Ahel  V.  Potts,  3  Esp.  C.  242,  and  Vol.  II.,  tit.  Policy. 

'  D'' Israeli  v.  Jowett,  1  Esp.  C.  427.  Such  log-book  and  the  official  letter  of 
the  commander  to  the  Admiralty  were  read  without  objection,  as  proof  that  the 
fleet  encountered  a  storm,  and  that  a  particular  vessel  parted  company  :  Watson 
and  another,  Administrators  of  Maxivell  v.  King,  4  Camp.  272,  Ellenborough, 

C.  J.,  1815;  Barber  v.  Holmes,  3  Esp.  190.  So  lists  of  convoy:  Richardson  v. 
Hellish,  2  Bing.  (9  E.  C.  L.  R.)  241. 

J  Burrough  v.  Martin,  2  Camp.  112. 

The  log-books  of  merchant-ships  are  now  regulated  by  the  Mercantile  Marine 
Act  1850;  13  &  14  Vict.  c.  93,  s.  85.  They  are  to  be  kept  in  a  form  sanc- 
tioned by  the  Board  of  Trade,  and  certain  entries  are  to  be  made  in  thorn  under 
a  penalty. 

'  The  log-l)ook,  kept  by  the  mate,  is  not  evidence  on  an  indictment  against 
the  crew  for  a  revolt  and  cunfiiiing  the  master:  United  States  v.  Sharp  et  al., 
Peters'  C.  C.  119.  M. 


BOOKS,    ETC.,     OF     PUBLIC    OFFICES.  306 

out  an  apprentice  for  every  fifty  tons,  and  that  the  same  shouhl  be 
verified  by  the  master,  mate  and  two  of  the  mariners,  it  was  held  that 
an  affidavit  verifying  a  muster-roll,  upon  which  it  appeared  that  a  cer- 
tain number  of  apprentices  Avas  on  board  when  the  vessel  cleared  out,, 
IS,  primd  facie  evidence  that  such  apprentices  were  on  board  when  the 
vessel  sailed.^  So  a  copy  of  an  official  document,  made  in  pursuance 
of  an  Act  of  Parliament,  containing'  the  names,  capacities,  and  de- 
scriptions of  passengers  transmitted  by  captains  in  the  India  trade 
to  the  Court  of  Directors,  was  held  to  be  good  proof  of  such  persons 
being  on  board. ^ 

Excise-books  are  public  documents.™  In  R.  v.  Grimwood^  it  was 
held  that  excise-books  transcribed  from  the  maltster's  specimen-paper 
were  admissible  evidence  against  him  without  calling  the  officers  to 
substantiate  them,  even  although  they  were  charged  to  be  fraudulent 
and  collusive,  without  proof  given  that  they  were  so.  The  custom- 
house copy  of  the  searcher's  report,  produced  by  the  officer  in  whose 
custody  it  is  lodged,  is  evidence  of  the  actual  shipment  of  the  goods 
therein  specified."  But  a  shipping  entry  at  the  Custom  House,  al- 
though  *for  some  purposes  a  public  document,  is  not  evi-    ^     . 

.  r*3071 

dence  to  affect  the  person  whose  duty  it  was  to  cause  the  entry    ^         J 

to  be  made,  criminally ;  the  note  from  which  the  entry  had  been  made 
by  the  office  having  been  accidentally  destroyed. p  Books  and  official 
documents  kept  at  the  Stamp  Office  under  certain  Acts,**  and  the 
Merchant  Seaman's  Register  Office,""  are  public  documents,  and  ad- 
missible to  prove  the  matters  which  in  the  course  of  duty  are  recorded 
therein. 

Under  the  Mercantile  Marine  Act,^  upon  complaint  by  the  master, 
any  of  the  mates,  one-third  of  the  crew,  or  the  consignee  of  any  ship, 
in  case  it  be  out  of  her  majesty's  dominions,  a  court  is  to  be  consti- 

^  Lacon  v.  Hooper,  1  Esp.  C.  246. 

'  Richardson  v.  MelUsh,  2  Bing.  (9  E.  C.  L.  R.)  229 ;  see  3  &  4  Will.  IV.  c. 
92,  s.  3  ;  and  see  Huntley  v.  Donovan,  15  Q.  B.  (69  E.  C.  L.  R.)  96. 

■"  Fuller  V.  Fotch,  Garth.  346. 

"  1  Price  369. 

°  Tomkins  v.  Attorney-General,  1  Dow.  404;  Johnson  v.  Ward,  6  Esp.  C.  47. 
Note,  that  the  paper  was  proved  to  have  gone  with  the  ship. 

P  Hughes  v.  Wilson,  1  Stark.  C.  (2  E.  C.  L.  R.)  179.  So  a  captain's  report  to 
the  Custom  House,  15  Q.  B.  (69  E.  C.  L.  R.)  96. 

1  7  &  8  Vict.  c.  113,  ss.  19,  20;  6  &  7  Will.  IV.  c.  76,  s.  8. 

n  &%  Vict.  c.  112,  8.  25 ;  5  &  6  Will.  IV.  c.  19,  s.  19.  There  are  also  other 
regulations  of  a  similar  kind,  which  will  be  noticed  under  the  heads  to  which 
they  belong. 

M3  &  14  Vict.  c.  93,  s.  82. 
19 


307  DOCUMENTS     OF    A     PUBLIC    NATURE. 

tuted  in  manner  there  prescribed,  which  may  hear  complaints,  and 
discharge  any  seaman,  or  supersede  the  master.  The  report  of  the 
proceedings  and  evidence  taken  before  this  court  is  to  be  sent  to  the 
Board  of  Trade;  and  if  it  purport  to  be  signed  by  the  senior  officer 
of  the  Court,  and  sealed  with  the  consular  seal,  and  be  produced  out 
of  the  custody  of  the  Board  of  Trade  or  its  officers,  it  shall  be  ad- 
mitted as  evidence. 

The  entry  of  the  contract  in  the  book  of  the  clerk  of  the  coal 
market  in  London  is  not  evidence  of  the  sale  under  47  Geo.  III., 
sess.  2,  c.  68,  s.  29,  unless  the  buyer  be  proved  aliunde  to  have 
signed  the  contract;  although  the  Act  directs  that  all  contracts  for 
the  sale  of  coals  shall  be  signed  by  the  buyer  and  the  factor,  that 
the  factor  shall  deliver  a  copy  to  the  clerk,  who  shall  enter  it  in  a 
book,  and  although  the  32d  section  makes  such  *entries  evi- 
L  '  J  dence  in  all  cases,  suits  and  actions  touching  anything  done 
in  pursuance  of  the  Act.' 

Rolls  of  Courts  Baron  are  also  regarded  as  public  documents," 
and  the  bill  of  cravings  of  a  sheriff  entered,  and  allowed,  and  of 
record  in  the  Exchequer,  was  held  admissible  evidence  upon  a  ques- 
tion of  the  duty  of  the  sheriff  of  the  county.'' 

The  poll-books  at  an  election  for  members  in  Parliament  are  evi- 
dence in  a  penal  action  for  bribery.'^  So  the  daily  book  kept  by  the 
keeper  of  Newgate,  and  the  books  of  the  Queen's  Bench  and  Fleet 
prisons,  are  evidence  to  prove  the  dates  of  the  commitments  and  dis- 
charges of  prisoners,^  although  the  entries  are  sometimes  made  from 
the  information  of  the  turnkeys,  and  the  indorsements  upon  the 
Avarrants.^  But  they  are  not  evidence  of  the  cause  of  commitment, 
the  commitment  itself  being  the  best  evidence.^  And  it  seems  that 
they  are  not  strictly  public  documents,  so  as  to  warrant  the  reception 

» Brown  v.  Capel,  M.  &  M.  (22  E.  C.  L.  R.)  374. 

"  B.  N.  P.  247 ;  Doe  d.  Askew  v.  Askew,  10  East  520 ;  Breeze  v.  Raivker,  14 
Sirn.  3";0. 

^E.  V.  Antrohus,  G  C.  &  P.  (25  E.  C.  L.  R.)  784. 

"  Mead  v.  Robinson,  Willes  422  •,  R.  v.  Hughes,  cited  Ibid. ;  R.  v.  Davis,  2 
Stra.  1048;  6  &  7  Vict.  c.  18,  ss.  93,  96.  By  s.  94,  office  copies  are  made 
evidence ;  and  see  R.  v.  Ledgard,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  535. 

«  R.  V.  Aickles,  Leach,  C.  C.  L.,  4th  ed.  438 ;  8  B.  &  P.  188. 

y  Salte  V.  Thomas,  3  B.  &P.  188;  on  the  ground  that  it  had  been  the  constant 
and  eHtal)lished  practice  of  the  keepers  of  public  prisons  to  register  the  discharge 
of  prisoners  in  such  books. 

*  Ibid.  Tills  case,  therefore,  and  some  others  of  a  similar  nature,  do  not  rest 
upon  the  ground  that  the  entry  was  made  by  an  authorized  officer. 


BOOKS,    ETC.,     or    PUBLIC     OFFICES.  308 

of  a  copy  in  evidence,  since  the  gaoler  is  not  required  to  make  such 
entries,  but  does  it  for  bis  own  information  and  security.* 

*Tbe  books  of  tbe  Bank  of  England  are  evidence  to  prove    r:f:qAQ-i 
the  transfer  of  stock.''     The  book  kept  in  tbe  master's  office 
in  the   Court  of  King's  Bench  is  evidence  to  prove  that  a  particular 
person  is  an  attorney  of  the  court.* 

The  bishop's  register  was  held  to  bo  admissible  to  establish  a 
custom  as  to  tbe  nominating  a  curate,**  and  so  a  collation  to  a  bene- 
fice from  the  Bishop's  Registry,  to  prove  the  exercise  of  the  right  to 
collate.® 

So  the  corporation  books  concerning  the  government  of  a  city  or 
town,  where  they  have  been  publicly  kept,  and  the  entries  have 
been  made  by  a  proper  officer,  are  admissible  evidence  of  the  facts 
witnessed  in  them.^  But  the  entry  in  the  public  books  of  a  corporation 
is  not  evidence  for  the  corporation,  unless  it  be  an  entry  of  a  public 
nature.^ 

A  book  kept  by  order  of  the  chancellor  was  held  to  be  good 
secondary  evidence  of  the  allowance  of  a  certificate  of  bankruptcy; 
but  a  book  kept  in  the  office  of  the  secretary  of  bankrupts,  without 

*  Ibid.  And  it  is  difficult  to  see  on  what  ground  they  are  evidence  at  all, 
unless  the  persons  who  made  the  entries  were  shown  to  be  dead,  when  they 
might  be  treated  as  entries  made  in  the  course  of  business.  Thus  the  register 
of  attendances  and  of  reports  relative  to  sickness  kept  by  the  medical  officer  of 
a  Poor-Law  Union,  in  obedience  to  rules  made  by  the  Poor-Law  Commissioners 
under  4  &  5  Will.  IV.  c.  75.  s.  15,  is  not  receivable :  Merrick  v.  Waklei/,  8  Ad. 
&  E.  (35  E.  C.  L.  R.)  170.  ' 

*•  Marsh  v.  Colnett,  2  Esp.  C.  605  ;  Breton  v.  Cope,  Peake,  C.  43. 

'  i?.  V.  Crosslei/,  1  Esp.  C.  526 ;  and  see  Jones  v.  Stevens^  11  Price  235. 

^Arnold  v.  Bishoi^  of  Bath  and  Wells,  5  Bing.  (15  E.  C.  L.  R.)  316.  A 
faculty  by  Archbishop  of  Canterbury  to  inhabitants  of  F.,  to  christen  and  bury 
there,  is  evidence  to  show  that  F.  is  not  a  parish :  Isham  v.  Wallace,  4  Sim.  25. 
Extracts  from  the  Bishop's  register  of  the  appointment  to  parish  offices  are 
evidence  to  show  the  right  exercised  by  the  parishioners  concurrently  with  the 
rector:  Hartley  v.  Cooke,  5  C.  &  P.  (24  E.  C.  L.  R.)  441  ;  and  see  Bishop  of 
Meath  v.  Belfield,  1  Wils.  215 ;  Bullen  v.  Michel,  2  Price  399.  See  further,  as 
to  Bishop's  books:  Humble  v.  Hunt,  Holt's  C.  (3  E.  C.  L.  R.)  001  ;  Coombs  v. 
Coether,  M.  &  M.  (22  E.  C.  L.  R.)  398. 

« Irish  Society  v.  Bishop  of  Derry,  12  CI.  &  F.  641. 

^  R.  V.  Mothersell,  1  Stra.  93;  Thetford  case,  12  Vin.  Abr.  90,  pi.  16;  R.  v. 
Mayor,  &c.,  of  Liverpool,  4  Burr.  2244 ;  see  also  Breton  v.  Cope,  Peake,  C.  43  ; 
Warriner  v.  Giles,  2  Stra.  954. 

^  Marriage  v.  Lawrence,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  142 ;  although  the  corpo- 
ration be  sued  by  one  of  its  members :  Hill  v.  Manchester  and  Salford  Water- 
u-orks  Company,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  866. 


310  DOCUMENTS     OF    A     PUBLIC     NATURE. 

such  order,  is  not  admissible.''  *Books  in  the  office  of  clerks 
L  -"of  the  peace  of  enrolments  of  deputations  of  game-keepers 
for  a  manor,  are  admissible  to  prove  the  exercise  of  manorial  rights, 
without  proof  of  the  loss  of  the  original  deputations,  and  that  the 
game-keepers  acted  under  them.' 

The  registry-*  of  a  ship  is  evidence  to  negative  ownership,  since  no 
one  can  be  an  owner  who  is  not  registered  as  such;*"  but  the  registry 
is  not  necessarily  proof  of  ownership,  without  showing  the  privity  of 
the  party,  since  the  entry  may  have  been  made  by  a  stranger  for  the 
r*^i1l  purpose  of  fraud;^  and  even  against  the  party  proved  to 
*have  made  or  authorized  the  registration,  the  registry 
merely  proves  the  legal  ownership;  and  in  an  action  for  repairs,  the 
party  may  prove  that  he  has  in  fact  parted  with  his  interest,  and 
ceased  to  interfere  in   the  management  of  the  ship."'     On   the  same 

^  Heiinj  V.  Leigh,  3  Camp.  C.  499. 

i  Hunt  V.  Andrexos,  3  B.  &  Aid.  (5  E.  C.  L.  R  )  341. 

J  The  oaths  and  declarations  required,  by  8  &  9  Vict.  c.  89,  s.  43,  to  be  made 
by  the  owners  of  vessels,  and  the  books  of  registry  themselves,  required  to  be 
kept  by  the  collectors  and  comptrollers,  may  be  proved  by  examined  copies  or 
extracts  without  the  attendance  of  the  registering  officer,  but  this  does  not 
render  them  evidence  of  the  facts  against  third  persons  ;  and  see  12  &  13  Vict, 
c.  29.  And  now  by  14  &  15  Vict.  c.  99,  s.  12,  "  every  register  of  a  vessel  kept 
under  any  of  the  acts  relating  to  the  registry  of  British  vessels  may  be  proved 
either  by  the  production  of  the  original  or  an  examined  copy  thereof,  or  by  a 
copy  thereof  purporting  to  be  certified  under  the  hand  of  any  person  having  the 
charge  of  the  original^"  and  "  every  such  register,  or  such  copy  of  a  register, 
and  also  every  certificate  of  registry  granted  under  any  of  the  acts  relating  to 
the  registry  of  British  vessels,  and  purporting  to  b6  signed  as  required  by  law 
shall  be  received  as  prima  facie  proof  of  all  the  matters  contained  or  recited  in 
such  register  when  the  register  or  such  copy  thereof  as  aforesaid  is  produced, 
and  all  matters  contained  or  recited  in  or  indorsed  on  such  certificate  of  regis- 
try when  the  certificate  is  produced." 

^  Camden  v.  Anderson,  5  T.  R.  709 ;  14  East  229  ;  Marsh  v.  Eohinsnn,  4  Esp. 
C.  98  ;  Firie  v.  Anderson,  4  Taunt.  G52  •,  Flower  v.  Young,  3  Camp.  240  :  Abbot 
on  Shipping,  eh.  ii.,  p.  27. 

'  Tinkler  v.  Walpole,  14  East  226 ;  Smith  v.  Fnge,  3  Camp.  456 ;  Fraser  v. 
Hopkins,  2  Taunt.  5  ;  'feed  v.  Martin,  4  Camp.  90  :  Cooper  v.  South,  4  Taunt. 
802;  IHtchhurn  v.  Spracklin,  5  Esp.  C.  31.  In  an  action  for  stores  furnished 
for  a  ship  by  the  captain's  order,  the  register  purporting  to  have  been  obtained 
by  ail  tiie  defendants,  on  the  oath  of  one  of  them,  was  held  to  be  prima  facie 
evidence  to  charge  them  as  owners  :  Stokes  v.  Came  and  others,  2  Camp.  339. 
In  trover  for  a  sliip,  if  the  plaintiff  produce  the  original  register,  and  attempt, 
unsuccessfully,  to  deduce  a  title  under  it,  it  has  been  said  he  cannot  afterwards 
rely  upon  his  possession  :  Sherriff  v.  Cadell,  2  Esp.  C.  617,  Kenyon,  C.  J.,  1798. 
"'  Curling  v.  Robertson,  7  M.  &  Gr.  (49  E.  C.  L.  II.)  336  ;  Young  v.  Brander, 
8  East  \i) ;  Jennings  v.  Grijilhs,  Ry.  &  M.  (21  E.  C.  L.  R.)  42  ;  M'lver  v.  Hum- 
ble, 16  East  109. 


BOOKS,    ETC.,     OF     PUBLIC     OFFICES.  311 

principle,  a  register  is  not  evidence  for  the  defendant  to  prove  a 
joint  ownership  on  a  plea  in  abatement ;°  nor  (without  possession)  to 
prove  an  interest  of  another  person  in  the  ship,  m  an  action  brought 
by  an  agent  on  a  policy  of  insurance,  describing  the  interest  in  that 
other  person;"  nor  to  prove  that  a  ship  is  British  built,  as  described 
in  the  register.''  For  the  same  reason,  the  mere  fact  of  an  entry  of 
a  stage  coach  at  the  licensing  office  was  no  evidence  of  ownership.'^ 

The  books  in  the  Heralds'  Office,  containing  the  pedi-  r:cq-i9-| 
grees  *of  the  nobility  and  gentry  of  the  realm,  are  evi- 
dence on  a  question  of  pedigree;''  and  so  are  the  minute-books 
of  a  visitation,'  from  Avhich  the  entries  are  afterwards  made  in 
the  books  of  the  Heralds'  College.'  In  the  case  of  Pitton  v.  Wal- 
ter,'' a  minute-book   of  a  visitation,  signed  by  the  heads  of  several 

°  Flower  v.  Young,  3  Camp.  240. 

°  Pirie  v.  Anderson,  4  Taunt.  652. 

P  Reusse  v.  Myers,  3  Camp.  475.  See  further,  as  to  proof  of  property  in  a 
ship,  Vol.  II.,  tit.  Policy. 

"  Strothe  v.  Willan,  4  Camp.  24 ;  Ellis  v.  Watson,  2  Stark.  C.  (3  E.  C.  L.  R.) 
453.  But  the  stat.  5  &  6  Vict.  c.  79,  by  s.  10,  provides  that  a  certified  copy  of 
the  license,  which,  by  s.  11  of  2  &  3  Will.  IV.  c.  120,  is  directed  to  contain,  if 
the  Commissioners  think  proper,  the  Christian  and  surname,  and  place  of  abode, 
of  every  proprietor  or  part  proprietor,  or  person  who  shall  be  concerned  in  the 
keeping,  using,  or  employing  such  carriage,  shall  in  all  proceedings,  and  on  all 
occasions  whatsoever,  be  received  as  evidence  against  any  and  every  person 
named  in  such  license  of  the  contents  thereof.  So,  in  the  case  of  Metropolitan 
Hackney  Carriages,  a  certified  copy  of  the  entry  of  the  license  at  the  Registrar's 
shall  be  evidence  and  suflicient  proof  of  all  things  therein  registered ;  and  see 
further  13  &  14  Vict.  c.  7,  as  to  these.  The  stat.  5  &  6  Vict.  c.  79,  repealed  the 
clause  in  the  statute  50  Geo.  III.  c.  48,  s.  7,  which  enacted  that  the  name  painted 
on  the  outside  panel  of  each  door  of  a  public  stage-coach  should  be  evidence  of 
ownership.  This  was,  not  only  on  summary  proceedings  before  magistrates, 
but  in  general,  good  evidence  of  proprietorship  :  Barford  v.  Nelson,  1  B.  &  Aid. 
(20  E.  C.  L.  R.)  571. 

■•  Pitton  V.  Walter,  Str.  162 ;  Salk.  281  ;  Skin.  623  ;  Yelv.  34 ;  King  v.  Foster, 
T.  Jon.  164-224.  A  book  found  therein,  purporting  to  be  an  account  of  the 
possession  of  property  by  a  monastery,  is  not  evidence  of  that  fact:  Lygon  v. 
Strutt,  2  Anst.  601. 

"  Sherriffy.  Cadell,  2  Esp.  617  ;  T.  Jon.  224 ;  B.  N.  P.  244. 

'  The  visitation-books  were  compiled  by  the  provincial  kings-at-arms,  who  were 
usually  authorized,  soon  after  their  investiture  in  office,  by  a  commission  under 
the  great  seal,  to  visit  the  several  counties  within  their  respective  provinces,  to 
take  survey  and  view  all  manner  of  arms,  &c.,  with  the  notes  of  the  descents 
pedigrees,  and  marriages  of  all  the  nobility  and  gentry,  &c.  They  occupy  the 
interval  between  the  21  Hen.  VIII.  and  the  end  of  the  reign  of  Jac.  II.  See 
the  first  report  of  the  House  of  Commons  on  the  Public  Records,  \).  82. 

»  Str.  162. 


312  DOCUMENTS     OF    A     PUBLIC     NATURE. 

families,  and  found  in  the  library  of  Lord  Oxford,  Avas  received  in 
evidence.  But  an  extract  from  a  pedigree  proved  to  be  taken  out 
of  the  records  is  not  evidence,^  because  a  copy  of  the  record  might 
be  had,  and  therefore  it  is  not  the  best  evidence. 

Armorial  bearings  are  also  evidence  on  a  question  of  pedigree,  as 
tending  to  show  that  the  person  using  them  was  of  the  family  to 
which  they  of  right  belong,  his  particular  branch  of  that  family, 
what  families  were  allied  to  it,  what  members  were  maidens,  widows, 
&c.,  and  what  illegitimate.'^  Some  officer  from  the  Herald's  College 
must  attend  to  explain  the  intention  and  effect  of  the  different  bear- 
ings. But  as  the  heralds  have  exercised  very  little  power  since  the 
revolution  in  restraining  the  usurpation  of  another's  arms,  evidence 
of  armorial  bearings  used  since  that  period  is  of  little  weight.'' 
j-^q-io-i  A  book  of  the  date  of  Queen  Elizabeth  purporting  to  be 
*written  by  an  officer  of  the  Duchy  of  Lancaster,  and  de- 
scribing the  duties  of  the  office,  is  not  evidence  on  behalf  of  a  suc- 
cessor claimino;  to  exercise  the  same  rights  and  duties  under  an 
appointment  from  the  duchy,  although  it  has  been  always  kept  and 
referred  to  as  an  authority  in  the  Duchy  Office.^ 

Where  a  local  Act  authorized  acts  to  be  done  at  meetings  to  be 
called  for  that  purpose,  and  directed  that  entries  in  the  commis- 
sioners' books  should  be  evidence ;  held,  that  entries,  stating  orders 
to  have  been  made  at  a  meeting  held  by  public  notice,  without  show- 
ing that  notice  was  given  of  the  purpose  for  which  it  was  called,  was 
not  sufficient  to  establish  the  legality  of  the  meeting.^  In  order  to 
render  the  books  available,  the  entries  must  be  made  strictly  in  ac- 
cordance with  the  Act,  which  directs  them  to  be  kept,*  but  where  an 
Act  directed  minutes  of  each  meeting  to  be  kept  which  should  be 
signed  by  the  chairman  at  each  respective  meeting,  a  signature  by 
the  chairman  on  a  subsequent  day  was  held  to  be  a  sufficient  compli- 
ance with  the  requisition  of  the  statute.^ 

Land-tax  assessments  are  admissible  evidence  to  show  the  seisin 
of  the  particular  person  assessed;  for  it  is  the  duty  of  the  officer  to 

"  B.  N.  P.  248. 

*  Harvey  v.  Harvey,  2  W.  Bl.  877 ;  Co.  Litt.  27 ;  1  Sid.  354. 

*  The  first  Herald's  visitation  was  in  1528,  the  last  in  1686 ;  Ilubback's  Evid. 
of  Succession,  696. 

'  Jeicison  v.  Dyson,  2  M.  &  Rob.  377. 

*  Hey.sham  v.  Forster,  5  M.  &  Ry.  277. 

'  h'ej.  V.  Mayor  of  Evesham,  8  A.  &  E.  (35  E.  C.  L.  R.)  266. 
''  Milm  V.  lioufjh,  3  (l  B.  (43  E.  C.  L.  R.)  845  ;  Southampton  Dock  Company 
v.  Richards,  1  M.  &  G.  (39  E.  C.  L.  R.)  448. 


BOOKS,    ETC.,     OF     PUBLIC     OFFICES.  313 

ascertain  and  charge  the  occupier."  And  sucli  assessments  are  ad- 
missible, in  conjunction  with  otlier  evidence,  to  prove  the  seisin  of 
land  by  a  particular  individual,  although  they  contain  only  the  sur- 
name generally."^  But  such  evidence  was  held  to  be  insufficient  to 
prove  the  seisin  of  a  particular  individual,  where  it  appeared  that 
the  assessor  had,  in  the  first  instance,  entered  *the  name  of  r^o-i/i-l 
a  former  owner  incorrectly,  and  continued  it  after  his  death." 

Books  and  chronicles  of  public  history  are  not  admissible  in 
order  to  prove  particular  facts  or  customs,^  but  they  are  evidence 
to  prove  a  matter  relating  to  the  kingdom  at  large,  as  being  the 
best  of  which  the  subject-matter  is  capable.^  ^  Camden's  Britannia 
was  rejected  on  the  question,  whether,  by  the  custom  of  Droitwich, 
salt-pits  could  be  sunk  in  any  part  of  the  town,  or  in  a  certain  place 
only.**  And  so  was  Dugdale's  Monasticon,  on  the  question,  whether 
the  Abbey  de  Sentibus  was  an  inferior  abbey,  or  not,  because  the 
original  records  misht  be  had  at  the  Auo-mentation  Office.'  It  was 
held  that  Dugdale's  Baronage  was  not  evidence  to  prove  a  descent;'' 
and  books  of  history  are  not  evidence  of  the  creation  of  a  peerage.^ 

*  Coventry  on  Conveyancers'  Evidence,  c.  7,  s.  1,  p.  275 ;  Doe  v.  Seaton,  2  Ad. 
&  E.  (29  E.  C.  L.  R.)  171 ;  Doe  v.  Cartwnght,  1  C.  &  P.  (12  E.  C.  L.  R.)  218. 

^  Ibid. 

«  Doe  d.  Stanshury  v.  Arlioright,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  182. 

'  B.  N.  P.  248  ;   Cockman  v.  Mather,  1  Barnardist  14. 

8  Ibid.  249 ;  Salk.  281.  On  the  impeachment  of  Warren  Hastings,  the  History 
of  the  Growth  and  Decay  of  the  Ottoman  Empire,  by  Prince  Demetrius  Cante- 
mir,  was  received  in  evidence  to  pi'ove  the  customs  in  Ilindostan  respecting  the 
treatment  of  women  of  rank:  and  after  arguments  as  to  the  admissibility  of 
the  evidence,  it  was  held  that  the  managers  were  entitled  to  read  it,  on  the 
ground  that  it  went  to  prove  an  universal  custom  of  the  Mohammedan  religion  ; 
see  Phillips  on  Evidence,  vol.  i.  424,  citing  a  report  of  the  proceedings  on  the 
impeachment,  in  the  possession  of  T.  Jones  Howell,  the  editor  of  the  State 
Trials.  The  point  was  referred  to  by  Lord  Ellenborough,  on  the  trial  of  General 
Picton  :  30  How.  St.  Tr.  492. 

^  Stainer  v.  The  Burgesses  of  Droitwich,  Salk.  281  ;  Skinner  623  ;  1  Vent. 
151. 

'  Cited  Salk.  281.  *  Piercys  case,  T.  Jon.  164. 

1  Vaux  Peerage,  5  CI.  &  F.  526. 

^  Historical  books  which  have  been  generally  received  as  authentic  are  admis- 
sible as  furnishing  evidence  of  remote  transactions :  Comm.  v.  Alburger  et  al., 
1  AVhart.  469.  G. 

But  matters  of  general  history  must  be  given  in  evidence  as  well  as  all  other 
facts  and  a  jury  are  not  to  be  left  to  their  own  information  as  to  such  things : 
Gregory  v.  Bauyh,  4  Rand.  611.  I. 

See  ante,  p.  49,  note. 


314  DOCUMENTS     OF    A    PUBLIC     NATURE. 

But  in  the  case  of  Neale  v.  jPr?/,""  in  order  to  show  that  a  deed  was 
forged  which  bore  date  1  Philip  k  Mary,  in  which  all  the  titles  were 
given  to  Philip  which  he  used  after  the  surrender  of  Charles  the 
Fifth,  chronicles  were  admitted  to  show  that  he  did  not  take 
*those  titles  upon  him  till  six  months  after  the  date  of  the 
L  -I  deed.  And  in  the  case  of  St.  Catharine's  Hospital,  Lord 
Hale  admitted  a  chronicle  to  prove  a  particular  point  of  history  in 
the  reign  of  Edward  the  Third."  The  year-books  are  evidence  to 
prove  the  course  of  the  court."  The  history  of  a  particular  county 
is  not  admissible^  to  prove  the  boundary  between  two  parishes,  it 
beinw  admitted  that  the  latter  was  coincident  with  the  former.'* 

It  is  a  general  rule,  that  whenever  the  original  document  is  of  a 
public  nature,  an  exemplification  of  it  (if  it  be  a  record),  or  a  sworn 
copy,  is  admissible  in  evidence,'  because  documents  of  a  public  nature 
cannot  be  removed  without  inconvenience,  and  danger  of  being  lost 
or  damaged;^  and  the  same  document  may  be  wanted  in  two  places 
at  the  same  time.^     The  document  must  always  be  proved  to  be  that 

■»  Salk.  282,  and  B.  N.  P.  249.  °  Salk.  282. 

•Ibid. ;  Spelman's  Nomina  Villarum  has  been  received  to  prove  Newstead  to 
be  avill:  Phillips  on  Evidence  605,  8th  edit.  Bishops  AYell's  Liber  de  Ordina- 
tionibus  Vicariorum  has  been  admitted  to  prove  an  endowment :  Tucker  v. 
Wilkins,  4  Sim.  241. 

P  Evans  v.  Getting,  6  C.  &  P.  (25  E.  C.  L.  R.)  586.  It  was  thrown  out  that 
the  writer  might  have  the  same  interest  as  any  other  inhabitant  in  extending 
the  boundaries  of  the  county,  although  the  case  diflered  from  that  of  a  general 
history  of  the  country.  But  it  seems  the  consistory  court  will  receive  a  county 
history  as  evidence  of  public  matters;  e.  g.  the  union  of  the  two  parishes,  since 
the  demolition  of  the  church  of  one  of  them  :  White  v.  Beard,  2  Curt.  Ecc.  R. 
492. 

1  See  further  as  to  almanacs,  Vol.  II.,  tit.  Time  ;  corporation  books,  Vol.  II., 
tit.  Corporation  ;  manor  books,  Vol.  II.,  tit.  Copvhold — Manor. 

'  B.  N.  P.  394  ;  Gilb.  Law  of  Ev.  5,  6.  But  though  a  co^nj  of  a  contract  with 
the  land-tax  commissioners  is  made  evidence  by  42  Geo.  III.  c.  116,  s.  165,  the 
original  contract  is  not  evidence  by  implication :  Biirdon  v.  Rickets,  2  Camp. 
121  ;  and  see  Sav.  46,  pi.  98  ;  Vol.  II.,  tit.  Penal  Action. 

» Gilb.  Law  of  Ev.  6 ;  Bac.  Ab.  Ev.  F. ;  and  see  Lynch  v.  Gierke,  3  Salk.  154 ; 
R.  V.  Haines,  Comb.  337. 

^  In  the  State  Courts,  no  other  authentication  of  documents  from  a  public 
ofBce  of  the  United  States  ought  to  be  required  than  such  as  would  be  sufficient 
in  the  courts  of  the  United  States:  Wickliffe  v.  /////,  3  Litt.  330.  But  a  paper 
purporting  to  be  a  document  from  the  treasury  department  of  the  United 
States,  certified  to  Ije  a  true  copy,  but  without  the  official  seal,  is  not  evidence. 
Ibid. 

By  the  first  section  of  the  statute  of  the  United   States,  passed  March  27th 


JUDICIAL    DOCUMENTS.  815 

which  it  purports  to  he,  and  for  which  it  is  offered,  hy  some  extrinsic 
proof;  as  in  the  case  of  records,  terriers,  etc.,  by  sliowing  that  they 
came  from  *the  legal  custody  or  repository.'  And  this  is  r^oip-i 
in  general  sufficient,  where  the  original  is  produced,  for  a 
record  proves  itself;  and  terriers  and  other  ancient  writings  do  not 
usually  admit  of  further  authentication.^ 

II.  Judicial  Documents. 

Judicial  documents  may  be  divided  into  First.  Judgments,  decrees, 
and  verdicts.  Secondly.  Depositions,  examinations,  and  inquisitions, 
taken  in  the  course  of  a  legal  process.      Thirdly.  Writs,  warrants, 

*  See  tit.  Records — Judgments,  &e. ;  see  also  Terriers,  supra,  29'2.  Several 
instances  have  been  given  in  which,  by  particular  statutes,  documents  are  to  be 
taken  prima  facie  to  be  what  they  purport  to  be.  There  are  also  other  instances 
of  a  similar  rule,  but  as  they  are  not  uniform,  and  do  not  depend  upon  any 
general  principle,  they  will  be  noticed  in  treating  of  the  subjects  to  which  they 
relate.  It  is,  perhaps,  to  be  desired  that  a  general  rule  to  this  effect  should  be 
established. 

"  For  the  mode  of  procuring  access  to  public  documents,  see  tit.  Inspection. 

1804,  "  all  records  and  exemplifications  of  ofiice  books,  which  are  kept  in  any 
public  office  of  any  State,  not  appertaining  to  a  court,  shall  be  proved  or 
admitted  in  any  other  court  or  office  in  any  other  State,  by  the  attestation  of 
the  keeper  of  the  said  records  or  books  and  the  seal  of  his  office  thereto  annexed, 
if  there  be  a  seal,  together  with  a  certificate  of  the  presiding  justice  of  the 
court  of  the  county  or  district,  as  the  case  may  be,  in  which  such  office  is  or 
may  be  kept ;  or  of  the  Governor,  the  Secretary  of  State,  the  chancellor  or  the 
keeper  of  the  great  seal  of  the  State  that  the  said  attestation  is  in  due  form, 
and  by  the  proper  officer ;  and  the  said  certificate,  if  given  by  the  presiding 
justice  of  a  court,  shall  be  further  authenticated  by  the  clerk  or  prothonotary 
of  the  said  court,  who  shall  certify  under  his  hand  and  the  seal  of  his  office 
that  the  said  presiding  justice  is  duly  commissioned  and  qualified;  or  if  the 
said  certificate  be  given  by  the  Governor,  the  Secretary  of  the  State,  the  chan- 
cellor or  the  keeper  of  the  great  seal,  it  shall  be  under  the  great  seal  of  the 
State  in  which  the  said  certificate  is  made.  And  the  said  records  and  exempli- 
fications, authenticated  as  aforesaid,  shall  have  such  faith  and  credit  given  to 
them  in  every  court  and  office  within  the  United  States,  as  they  have  by  law  or 
usage  in  the  courts  or  offices  of  the  State  from  whence  the  same  are  or  shall  be 
taken."  The  second  section  provides  that  the  first  section,  and  the  Actof  1790, 
shall  apply  to  books,  records,  offices,  &c.,  of  the  tejTitories  of  the  United  States, 
and  countries  subject  to  the  Juris  diction  of  the  United  States.  M. 

The  enrolment  of  a  steamboat  is  a  record  of  which  the  collector  of  customs 
is  the  custodian,  under  the  acts  of  Congress,  and  a  copy  thereof,  duly  certified 
by  the  collector,  is  competent  evidence ;  as  is  also  such  a  copy  of  the  act  of 
sale  recorded  under  the  act  of  Congress  of  1850 :  Sampson  v.  Noble,  14  La. 
Ann.  347. 


316  JUDICIAL    DOCUMENTS. 

pleadings,  bills,  and  answers,  &c.,  which  are  incident  to  judicial  pro- 
ceedings. With  respect  to  judgments,  decrees  and  verdicts,  may  be 
considered  ;  frst,  their  admissibility  and  effect  ;  secondly,  the  means 
of  proof;  thirdly,  the  mode  of  answering  such  evidence. 

Judgments,  Decrees  and  Verdicts. — In  treating  of  the  admissibility 
and  effect  of  judgments,  decrees  and  verdicts,  it  is  important  to  con- 
sider, in  the  first  place,  for  what  purpose  a  verdict  or  judgment  is 
offered  in  evidence ;  whether  with  a  view  to  establish  the  mere  fact 
that  such  a  verdict  was  given,  or  judgment  pronounced,  and  those 
legal  consequences  which  result  from  that  fact ;  or,  secondly,  with  a 
view  to  a  collateral  purpose ;  that  is,  not  to  prove  the  mere  fact  that 
such  a  judgment  has  been  pronounced,  and  so  to  let  in  all  the  necessary 
legal  consequences  of  that  judgment,  but  as  amedium  of  *prov- 
L  -'  ing  some  fact  as  found  by  the  verdict,  or  upon  the  supposed 
existence  of  which  the  judgment  is  founded. 

Tor  establishing  the  fact  that  such  a  verdict  has  been  given,  or  such 
a  judgment  pronounced,  and  all  the  legal  consequences  of  such  a 
judgment,  the  judgment  itself  is  invariably  not  only  admissible  as  the 
proper  legal  evidence  to  prove  the  fact,  but  usually  conclusive  evi- 
dence for  that  purpose ;  for  it  must  be  presumed  that  the  Court  has 
made  a  faithful  record  of  its  own  proceedings.  And  in  the  next 
place,  the  mere  fact  that  such  a  judgment  w^as  given  can  never  be 
considered  as  res  inter  alios  acta,  being  a  thing  done  by  public  au- 
thority;  neither  can  the  legal  consequences  of  such  a  judgment  be 
ever  so  considered ;  for  where  the  law  gives  to  a  judgment  a  particu- 
lar operation,  that  operation  is  properly  shown  and  demonstrated  by 
means  of  the  judgment,  which  is  no  more  res  inter  alios  acta  than 
the  law  which  gives  it  force.  But  with  reference  to  any  fact  upon 
whose  supposed  existence  the  judgment  is  founded,  the  proceeding 
may  or  may  not  be,  res  inter  alios  acta,  according  to  circumstances. 
For  instance,  if  B.,  being  indicted,  was  convicted  of  beating  A.,  the 
record  of  the  judgment  would  be  incontrovertible  evidence  of  the  fact 
that  B.  had  been  so  convicted  ;  it  would  be  conclusively  presumed  that 
the  court  had  kept  a  faithful  record  of  its  own  proceedings.  It  would 
in  like  manner  be  conclusive  as  to  all  the  legal  consequences  of  such 
conviction.  For  instance,  one  of  such  consequences  is,  that  B.  shall 
not  be  punished  a  second  time  for  the  same  offence ;  and  consequently 
the  record  would  be  conclusive,  when  shown  to  the  court,  to  protect 
him  from  a  second  prosecution  for  the  same  offence.  So  if  B.  had 
been  acquitted,  and  had  brought  an  action  against  A.  for  a  malicious 
prosecution,  it  would  have  been  necessary  to  prove  the  fact  of  ac- 


JUDGMENTS,     WHEN    CONCLUSIVE.  317 

quittal ;  and  here  again  the  record  would  have  been  conclusive  evi- 
dence to  show  that  fact.  But  next  suppose,  that  upon  J5.'s  conviction 
^4.  brought  an  action  to  recover  *damao;es  for  the  assault,  ^  ^^^^ 
and  offered  to  prove  the  assault  by  the  record  of  conviction,  L  J 
he  would  then  be  offering  the  judgment,  not  with  the  view  to  prove  the 
mere  fact  of  conviction,  or  to  establish  any  legal  consequence  to  be 
derived  from  it,  but  for  a  collateral  purpose ;  that  is  to  prove  the  fact 
upon  whose  supposed  existence  the  judgment  was  founded.  With 
respect  to  such  facts,  that  is,  the  facts  upon  which  a  judgment  pro- 
fesses to  be  founded,  the  judgment  may  or  may  not  be  evidence,  ac- 
cordinof  to  circumstances,  considerino;  the  nature  of  the  facts  them- 
selves,  and  the  parties.^ 

A  record  is  in  no  case  direct  and  positive  evidence  of  any  fact 
which  it  recites,  as  having  been  found  by  a  jury,  or  otherwise  ascer- 
tained ;  it  is  in  the  nature  of  presumptive  evidence  only,  for  even  the 
jury  who  found  the  fact  may  have  acted  upon  mere  presumption, 
without  the  aid  of  any  direct  evidence.  If,  therefore,  no  rule  of 
policy  intervened,  no  verdict  could  ever  establish  any  fact  conclu- 
sively, for  it  never  could  prove  more  than  that  the  jury,  in  the  par- 
ticular case,  presumed,  from  some  evidence  or  other,  that  the  fact 
was  true.  But  public  policy  requires  that  limits  should  be  opposed 
to  the  continuance  of  litigation  upon  the  same  subject-matter,  and 
therefore  the  law  will  not  permit  a  matter,  which  has  once  been  sol- 
emnly decided  by  a  court  of  competent  jurisdiction,  to  be  again 
brought  into  litigation  between  the  same  parties  or  their  representa- 
tives.'' Consequently  a  decree  or  judgment  between  the  same  parties 
upon  the  same  subject-matter  is  usually  conclusive  as  to  private  rights. 
On  the  other  hand,  it  is  an  elementary  rule  and  principle  of  justice, 
that  no  man  shall  be  bound  by  the  act  or  admission  of  another  to 
which  he  was  a  stranger ;  and  consequently  no  *one  ought 
to  be  bound,  as  to  a  matter  of  private  right,  by  a  judgment  ^  -' 
or  verdict^  to  which  he  was  not  a  party,  where  he  could  make  no 
defence,  from  which  he  could  not  appeal,  and  which  may  have  resulted 
from  the  negligence  of  another,  or  may  even  have  been  obtained  by 
means  of  fraud  and  collusion.  Neither  ought  any  one  in  justice  to  be 
bound  by  a  verdict,  although  he  was  privy  to  it,  but  where  his  adver- 

"  See  B.  N.  P.  14 ;  Purcell  v.  Macnamara,  9  East  361. 

^  According  to  the  legal  maxims,  "nemo  vexari  debet  bis  pro  eadem  causa," 
and  "reipublicce  interest  ut  sit  finis  litium;"  see  3  Wilson  304,  Kitchen  v.  Camp- 
bell;  see  2  Ex.  681. 

^  See  the  judgment  of  C.  J.  De  Grey,  in  the  Duchess  of  Kingston's  case,  20 
How.  St.  Tr.  355. 


319  JUDICIAL     DOCUMENTS. 

sary  was  not  also  a  party,  and  consequently  where  the  verdict  may 
have  been  founded  upon  the  evidence  of  that  adversary  himself,  who 
had  an  interest  in  obtaining  a  verdict  for  the  purposes  of  evidence  ; 
for  as  he  cannot  give  direct  evidence  upon  the  subject,  he  ought  not 
to  make  use  of  his  own  evidence  by  circuitous  means/  Another 
principle  which  (as  it  is  frequently  said)  operates  to  the  exclusion  of  a 
verdict,  as  evidence,  on  a  matter  of  private  right,  is  this,  that  a  person 
who  could  have  received  no  prejudice  from  the  verdict,  ha<l  it  been 
given  the  contrary  way,  shall  not  derive  any  benefit  from  it  when  it 
turns  out  to  be  in  his  favor,'^  and  because  a  judgment  operates  by 
way  of  estoppel,  and  estoppels  must  be  founded  on  mutuality.^ 

Another  ground  of  objection,  even  where  the  evidence  is  offered 
against  a  party  to  the  former  proceeding,  arises  when,  from  the 
nature  of  the  former  proceeding,  the  party  is  not  entitled  to  the 
same  means  of  disproving  the  fact,  or  the  same  means  of  redress,  of 
which  he  might  avail  himself  in  the  second  suit ;  for  this  would  be 
virtually,  although  circuitously,  to  deprive  him  of  those  advantages. 
Thus,  for  example,  the  effect  of  admitting  upon  the  trial  of  a  civil 
action,  a  conviction  on  an  indictment  for  felony  (except  for  the  pur- 
pose of  establishing  a  legal  consequence  of  the  conviction)  would 
p^oQA-i  formerly*  have  been  indirectly  to  deprive  *the  party,  against 
whom  the  evidence  was  offered,  of  the  power  of  repelling  the 
proof  by  means  of  a  full  defence  by  counsel,  and  of  his  attaint  of  the 
jury  for  finding  a  false  verdict. 

These  objections  are  however  applicable  to  those  cases  only  where 
a  matter  of  private  right  or  liability  is  concerned  ;  for  in  matters  of 
a  public  nature,  Avhere  the  proceeding  is,  as  it  is  usually  termed,  m . 
rem,  public  convenience  requires  that  the  sentence,  decree  or  judg- 
ment should  be  binding  upon  all.*^  In  cases  also  where  the  matter 
is  of  a  public  nature,  and  where  reputation  would  be  admissible  evi- 
dence, a  verdict  or  judgment  is  frequently  evidence,  as  falling  within 
the  scope  of  general  reputation. 

Such  are  the  general  considerations  by  Avhich  the  reception  of 
evidence  of  this  nature  is  governed,  depending  mainly  on  the  elemen- 
tary principles  already  announced  ;  viz.,  that  no  one  ought  to  be 
bound  by  any  testimony  where  he  has  not  had  the  power  of  cross- 

'  Gllli.  Law  of  Ev.  25.  "  Ibid.  28. 

"  Per  Lord  Ellonborou^rh,  4  M.  &  S.  470. 

•  But  now  Hcc  G  &  7  Will.  IV.  c.  114,  and  fi  Geo.  IV.  c*  50,  s.  GO. 
^  Vide  supra,  p.  3G,  and  tit.  Res  inter  alios  Acta.    But  see  Bailey  v.  Harris, 
12  Q.  B.  (04  E.  C.  L.  II.)  905. 


THEIR     ADMISSIBILITY     AND     EVIDENCE.  320 

examining  the  witness,  and  controverting  the  evidence  by  opposite 
testimony,"  nor  by  any  evidence  which  comes  within  the  description 
of  7'es  inter  alios  acta. 

The  admissibility  and  effect  of  a  verdict  or  judgment  is  now  to  be 
considered,  with  a  view  to  the  proof  of  the  judgment  itself  as  a  fact, 
and  its  legal  consequences.  It  seems  to  be  an  incontrovertible  rule, 
that  every  judgment  is  evidence  for  such  purposes,  and  the  only 
proper  evidence/  An  attainder  of  felony  or  treason  is,  in  general, 
evidence  as  to  all  the  consequences  of  the  attainder.^  A  conviction 
of  the  principal  for  felony  is  evidence  against  the  accessory.*^  A 
conviction  of  an  infamous  crime  was,  before  the  change  in  the  law 
before  described,  evidence  against  all,  to  show  the  incompetency  of 
the  party  as  a  witness/  So  the  *judgment  by  a  person  of  r*o9i-| 
competent  authority  is  evidence  to  protect  him  against  actions 
for  any  matter  judicially  done  within  the  scope  of  that  authority.^ 
For  his  immunity  is  a  legal  consequence  of  his  acting  in  that  situation ; 
and  the  judgment  is  offered,  not  to  prove  the  truth  of  the  facts  upon 
which  it  is  founded,  since,  with  a  view  to  such  a  defence,  the  truth 
of  those  facts  is  not  material,  but  in  order  to  prove  the  fact  of  a 
judgment  pronounced  by  competent  authority,  and  so  to  establish 
the  immunity  of  the  judge,  which  is  a  legal  consequence  of  the  judg- 
ment/ In  these,  and  a  number  of  other  instances,  where  a  judgment 
is  admitted  to  prove  the  fact  itself,  and  with  a  view  to  its  legal  conse- 
quences,™ every  such  judgment  maybe  considered  as  operating  in  rem.''^ 

*  Supra,  tit.  Excluding  Tests. 

'  R.  V.  Bourdon,  2  C.  &  K.  (61  E.  C.  L.  R.)  366. 

8  Vide  infra,  tit.  Accessory.  ^  Ibid.  '  Supra,  tit.  Witness. 

'  Brittain  v.  Kinnaird,  1  B.  &  B.  (5  E.  C.  L.  R.)  432;  Taylor  v.  Clemson,  2 
Q.  B.  (42  E.  C.  L.  R.)  1031  ;  Aldridge  v.  Haines,  2  B.  &  Ad.  (22  E.  C.  L.  R.) 
408;  vide  infra,  tit.  Convictions  by  Justices,  Vol.  II. 

'  Garnett  v.  Ferrand,  6  B.  &  C.  (13  E.  C.  L.  R.)  611  ;  Cave  v.  Mountain,  1  M. 
&  G.  (39  E.  C.  L.  R.)  257  ;  infra,  Ibid.  tit.  Justices— Trespass. 

"  Thus  a  decree  of  the  Court  of  Chancery,  made  in  Michaelmas  Term  1783 
in  a  suit  between  the  father  of  the  tenant  in  a  writ  of  right  and  other  persons 
wholly  unconnected  with  the  demandant,  brought  to  establish  a  will  under 
which  the  tenant's  title  arose,  by  which  decree,  the  court  directed  that  the 
estates  should  be  considered  as  belonging  to  the  tenant's  father,  the  devisee, 
and  that  he  should  be  let  into  possession,  and  have  all  the  title-deeds  delivered 
to  him,  was  admitted,  for  the  purpose  of  explaining  the  character  in  which  he 
took  possession  of  the  estate  :  Davies  v.  Lowndes,  1  Bing.  N.  C.  (27  E.  C.  L.  R.) 
606  ;  6  M.  &  G.  (46  E.  C.  L.  R.)  474. 

°  Thus  in  Pritchard  v.  Hitchcock,  6  M.  &  G.  (46  E.  C.  L.  R.)  151,  in  an  action 
against  the  surety  upon  a  guarantee,  to  which  the  defendant  pleaded  paymen^; 

'  A  judgment  may  be  given  in  evidence  against  strangers  whenever  it  is 


321  JUDICIAL     DOCUMENTS. 

In  an  action  by  A.  against  a  sheriff,  for  trespass  to  his  goods,  the 
defendant  may  give  in  evidence  a  judgment  against  B.,  and  that  he, 
by  virtue  of  a  fie7'i  facias  upon  that  judgment,  seized  the  goods  in 
r* 099-1  question,  being  the  *goods  of  B.  So  where  the  title  to  par- 
ticular goods  is  litigated  between  A.  and  B.,  it  is  competent 
to  A.  to  show  a  judgment  against  C,  and  that  the  sheriff  sold  the 
goods  to  him,  being  the  goods  of  C,  under  a  fieri  facias.  A  judg- 
ment in  assiwipsit  against  three  defendants  as  partners,  is  |;rm<^ 
facie  evidence  for  one  against  the  others,  to  prove  their  liability  to 
contribution."  And  in  an  action  against  the  sheriff,  for  an  escape  or 
other  negligence  in  regard  to  executions,  judgments  against  third 
persons  are  usually  given  in  evidence  to  show  how  the  plaintiff 
claims,  and  his  damages.''  So  where  A.  has  obtained  a  verdict 
against  B.  for  the  negligence  of  his  agent  C,  in  an  action  by  B. 
against  C,  the  recovery  in  the  former  action  is  evidence,  not  to 
prove  the  fact  on  which  it  is  founded,  viz.,  the  negligence  of  C,  but 
to  show  how  far  B.  has  been  damnified  f  the  judgment  here  is  the 
best  evidence  to  show  the  amount  of  ^.'s  liability  to  A.,  but  it  is  no 
evidence  to  show  that  such  liability  was  the  consequence  of  C's  neg- 
ligence, a  fact  which  must  be  proved  aliunde}     So  a  verdict  in  a 

by  the  principal,  it  was  held  that  a  verdict  against  the  plaintiff  by  the  assignees 
of  the  principal,  was  evidence  to  show  the  fact  that  they  had  recovered  back  the 
money  paid  by  the  principal,  though  it  was  not  evidence  that  they  were  entitled 
to  recover  it.  And  see  King  v.  Norman,  4  C.  B.  (5G  E.  C.  L.  R.)  884.  Sujyra, 
tit.  Res  inter  alios  acta. 

°  Powell  V.  Lay  ton,  2  N.  R.  371. 

P  Per  Tindal,  C.  J.,  Davies  v.  Lowndes,  1  Ring.  N.  C.  (27  E.  C.  L.  R.)  607. 

1  Green  v.  The  New  River  Comjmny,  4  T.  R.  590.  But  see  on  a  contract  to 
indemnify,  King  v.  Norman,  4  C.  B.  (56  E.  C.  L.  R.)  884. 

relevant  fact  in  the  title  of  the  party  who  offers  it.  Thus  where  the  title  is 
derived  from  a  judicial  sale,  the  judgment  or  decree  may  be  given  in  evidence 
as  the  authority  for  the  sale  :  Barr  v.  Gratz,  4  Wheat.  213  ;  Witmery.  Schlatter, 
2  Rawie  359 ;  Jackson  v.  Wood,  3  Wend.  27  :  Lovell  v.  Arnold,  2  Munf.  167 ; 
Foioler  v.  Savage,  3  Conn.  90 ;  Ansley  v.  Carlos,  9  Ala.  973  ;  King  v.  Chase,  15 
N.  II.  9  ;  Chamberlain  v.  Carlisle,  G  Fost.  540. 

'  In  an  action  of  covenant  for  quiet  enjoyment,  a  recovery  of  damages  in 
trespass  quare  clausum  fregit,  is  sufficient  evidence  to  show  a  breach  :  Williams 
v.  Shaio,  Nor,  Car.  Terra  Rep.  197.  And  so  the  verdict  in  an  action  against  an 
oflBcer  for  a  negligent  escape,  is  conclusive  evidence  of  the  amount  of  damages 
to  be  recovered  by  him  in  an  action  against  the  debtor :  Griffin  v.  Brown,  2 
Pick.  304.  But  a  mere  copy  of  docket  entries  is  not  admissible  as  evidence  of  a 
judgment  in  an  action  Ijy  a  surety  against  his  principal  to  recover  the  amount 
paid  by  him  under  the  judgment:  Levering  v.  Dayton,  4  Wash.  C.  C.  698.  The 
record  of  tlie  forfeiture  of  a  recognisance  in  the  proper  court  is  conclusive  evi- 


JUDGMENTS    BETWEEN    PRIVATE    PROCEEDINGS.      322 

former  cause  intej'  alios  is  admissible  for  the  purpose  of  introducing 
evidence  to  show  that  a  witness  on  the  former  trial  gave  evidence 
directly  contrary  to  that  which  he  gives  on  the  latter/  So  in  an 
action  for  a  malicious  prosecution,  an  indictment  against  the  plaintiiF 
is  evidence  to  show  the  act  done  by  the  defendant  in  the  prosecution 
of  his  malicious  intention,  and  also  to  show  the  plaintiff's  acquittal.^ 

■■  Clarges  v.  Sherioin,  12  Mod.  343  ;  B.^N.  P.  232. 

=  Legatt  v.  Tollervei/,  14  East  302;  see  Vol.  II.,  tit.  Malicious  Prosecution. 

dence  of  the  forfeiture  in  debt  on  the  recognisance  :  Shrine  v.  Cumm.,  2  Rawle 
200.  Where  in  an  action  of  assault  and  battery  the  defence  was  that  the 
plaintiff  (a  common  sailor)  had  destroyed  a  quantity  of  cheese  and  used  insult- 
ing language  to  the  master  (the  defendant  in  the  suit  of  assault  and  battery), 
the  record  of  a  court  of  competent  jurisdiction  of  an  action  brought  against  the 
sailor  for  damages  for  the  destruction  of  the  cheese,  in  which  a  verdict  had 
been  obtained  against  him  for  damages  and  final  judgment  thereon,  was  held 
inadmissible  to  prove  the  fact  of  such  destruction  :  Fi/er  v.  Atwater,  4  Day 
431.  G. 

In  an  action  by  A.  against  B.  to  recover  damages  for  the  value  of  a  slave  sold 
by  B.  to  A.,  and  which  had  been  recovered  by  a  paramount  title  by  C.  from  A. 
the  record  of  the  action  between  C.  and  A.  is  evidence  of  the  "  fact  of  eviction" 
and  of  the  damages  but  not  of  C.'s  title  :  Sanders  v.  Hamilton^  2  Ilayw.  226, 
282  ;  Blasdah  v.  Babcock,  1  Johns.  517  ;  s.  p.  A  verdict  against  the  sheriff, 
for  the  default  of  his  deputy,  is  evidence  is  an  action  by  the  sheriff  against  the 
deputy:  Tyler  v.  Ubner,  12  Mass.  166;  per  Parker,  C.  J.  This  is  doubtless 
true,  as  to  the  amount  of  damages  ;  and  probably  if  the  deputy  defend  the  first 
suit  or  have  notice  of  it  (which  seems  to  be  the  ground  on  which  the  judge 
made  the  above  dictum)  the  verdict  would  be  evidence  of  the  default.  Thus  in 
Kip  V.  Bringham,  6  Johns.  158  ;  7  Johns.  168;  where  the  sheriff,  who  was  sued 
for  an  escape  of  a  prisoner  to  whom  the  jail  liberties  had  been  granted,  gave 
notice  of  the  suit  to  the  prisoner's  sureties,  and  they  in  conjunction  with  the 
sheriff,  defended  it,  and  judgment  was  given  against  the  sheriff;  this  judgment 
was  held  in  an  action  by  the  sheriff  against  the  sureties  on  the  bond  for  his 
indemnity  to  be  conclusive  evidence  of  the  escape.  A  judgment  in  an  action 
against  a  sheriff  alone,  of  which  his  sureties  had  no  notice,  is  not  conclusive 
as  to  the  amount  of  damages  in  a  subsequent  suit  upon  the  recognisance  against 
tiie  sheriff  and  sureties  jointly  :  Carmack  v.  Comm.,  5  Binn.  154.  The  record  of 
a  recovery,  in  ejectment  against  a  covenantee,  is  not  conclusive  against  a 
covenantor,  if  he  had  no  notice  of  the  ejectment  :  Leather  v.  Poultneg,  4  Binn. 
356.  Aliter,  if  the  covenantor  had  notice  and  took  part  in  the  trial :  Bender  v. 
Fromherger,  4  Dall.  436,  note  ;  see  also  Hamilton  v.  Otitis  et  al.,  4  Mass.  349  ; 
Waldo  V.  Long,  7  Johns.  173 ;  Clark's  Ex'ors  v.  Carrington,  7  Cranch  322 ; 
Frewett  v.  Kenton,  3  Bibb.  281  ;  RadcUffe  v.  Ship,  Hardin  292;  Burrillv.  West, 
2  N.  II.  190.  It  has  been  decided  in  South  Carolina,  that  when  a  recovery  over 
is  given  by  law  or  secured  by  express  contract,  and  the  plaintiff  relies  on  the 
recovery  against  him  as  the  sole  and  conclusive  evidence  of  his  right  to  recover 
over,  notice  of  the  first  action  is  indispensably  necessary  :  Bond  v.  Ward,  1  N. 
&  McC.  201.  M. 


322  JUDICIAL     DOCUMENTS. 

So  a  record  is  frequently  evidence  by  way  of  inducement,  as  upon  an 
indictment  for  perjury,'  or  aiding  the  escape  of  a  felon." 
r*Q9^1  *In  considering  the  admissibility  and  effect  of  a  verdict 
or  judgment,  Avith  a  view  to  the  proof  of  those  matters  on 
which  they  are  founded,  it  will  be  convenient  to  divide  all  adjudica- 
tions into  :  First.  Those  which  relate  to  matters  of  private  litigation 
between  party  and  party.  Secondly.  Those  of  a  criminal  and  penal 
nature.  Thirdly.  Those  which  relate  to  proceedings  in  rem.  Fourthly. 
Those  which  relate  to  matters  usually  proved  by  reputation. 

As  to  the  admissibility  of  a  verdict  or  judgment  relatmg  to  matters 
of  private  litigation  hetioeen  parties. — ^It  has  been  laid  down  by  great 
authority,  that  in  civil  cases  the  judgment  of  a  court  of  concurrent 
jurisdiction  directly  upon  the  point,  is  as  a  plea  a  bar,  and  as  evi- 
dence,'' conclusive  between  the  same  parties  upon  the  same  matter 
directly  in  question  in  another  court ;  and  that  the  judgment  of  a 
court  of  exclusive  jurisdiction  is,  in  like  manner,  conclusive  upon  the 
same  matter  coming  incidentally^  in  question  in  another  court  be- 
tween the  same  parties  for  a  different  purpose.  But  that  the  judg- 
ment of  a  court  of  concurrent  or  of  exclusive  jurisdiction  is  not  evi- 
dence of  any  matter  which  comes  collaterally  in  question,  though 
within  their  jurisdiction,  nor  of  any  matter  to  be  inferred  by  argument 
from  the  judgment.^  ^ 

'  7?.  V.  Iles^  Cas.  temp.  Hard.  118  ;  R.  v.  Hammond  Page,  2  Esp.  649. 

"  E.  V.  Shaw,  R.  &  R.  526. 

^  Although  the  celebrated  judgment  in  The  Duchess  of  Kingston'^ s  case,  has 
received  frequent  sanction  from  eminent  judges,  by  whom  it  has  been  cited 
without  qualification,  it  will  be  seen  from  the  modern  authorities  below  refei-red 
to,  that  in  the  case  where  a  former  judgment  is  used,  not  as  a  decision  on  the 
identical  subject-matter  of  complaint,  but  as  a  decision  on  the  same  contro- 
verted point,  which  is  to  operate  by  way  of  estoppel,  it  cannot  so  operate  unless 
it  be  pleaded,  even  perhaps  although  the  party  seeking  to  avail  himself  of  it 
had  no  opportunity  for  pleading  it,  as  where  he  is  defendant  in  an  ejectment; 
see  Ferrers  v.  Arden,  6  Rep.  7 ;  Outram  v.  Morewood,  3  East  365,  per  Lord 
Ellenborough,  C.  J. ;  Vooght  v.  Wiiich,  2  B.  &  Aid.  662.  But  see  2  Smith's  L. 
C.  444,  445. 

y  Barrs  v.  Jackson.  1  Phill.  C.  Rep.  582. 

^  By  Dc  Grey,  C.  J.,  in  giving  judgment  in /The  Duchess  of  Kingston's  cas«, 
20  How.  St.  Tr.  355,  and  see  note  to  this  case,  2  Smith's  L.  C.  436.  A  verdict 
is  conclusive  between  the  same  parties  on  the  same  facts,  unless  it  has  been  re- 
versed by  attaint:  Co.  Litt.  227,  b.  So  a  defendant,  who  has  omitted  to  plead 
his  certificate  under  a  commission  of  bankrupt  in  a  former  action  by  plea  puis 

'  A  judgment  in  a  court  of  exclusive  jurisdiction  is  conclusive  upon  the  same 
matter  between  the  same  parties  coming  incidentally  in  question  in  another 


JUDGMENT.     ETC. — IDENTITY     OF     PARTIES.  324 

*This  was  part  of  the  judgment  of  C.  J.  De  Grey,  in  the    r*q.74-i 
case  of  The  Duchess  of  Kingston.      The  principal  position 
amounts   to    this,  that   no   matter   once  litigated  and  determined  by 
proper  authority,  sliall  a   second   time  be  brought  into  controversy 
between  the  same  parties. 

It  is  then  essential  to  consider  the  five  following  points  :  The  iden- 
tity of  the  parties  ;  the  identity  of  the  matter  litigated  ;  the  nature 
and  manner  of  the  adjudication  ;  the  application  of  the  adjudication 
to  the  fact  to  be  proved ;  and  the  effect  of  the  judgment. 

First,  then,  as  to  the  identity  of  the  parties.*  No  one  in  general 
can  be  bound  by  a  verdict  or  judgment  unless  he  be  a  party  to  the 
suit,  or  be  in  privity  with  the  party,  or  possesses  the  power  of 
making  himself  a  party ;'    for  otherwise  he  has  no  power  of  cross- 

darrein  continuance,  cannot  plead  it  to  an  action  on  the  judgment :  Todd  v.  Max- 
field,  6  B.  &  C.  (13  E.  C.  L.  R.)  105.  So  a  shareholder  of  a  bank  or  company 
cannot  plead  to  a  sci.fa.  what  would  have  been  an  answer  to  the  action  against 
their  public  officer :  Philipson  v.  Loi-d  Egremont,  6  Q.  B.  (51  E.  C.  L.  R.)  587. 
*  Even  an  infant  is  bound  by  a  judgment  in  an  action  wherein  he  was  a  party, 
although  brought  in  his  name  without  his  knowledge,  by  his  prochein  amy: 
Morgan  v.  Moore,  7  M.  &  W.  400.  But  the ^^?-oc7iei»t  amy,  who  is  not  "a  party," 
would  not  be  so  bound :  Sinclair  v.  Sinclair,  13  M.  &  W.  640. 

court  for  a  different  purpose.  But  neither  the  judgment  of  a  concurrent  or 
exclusive  jurisdiction  is  evidence  of  any  matter  incidentally  cognizable,  nor  of 
any  matter  to  be  inferred  by  argument  from  the  judgment :  Hibshman  v.  Dulle- 
ban,  4  Watts  183  ;  Lentz  v.  Wallace,  5  Harris  412 ;  Martin  v.  Gernandt,  7  Harris 
124 ;  Society  v.  Hartland,  2  Paine  C;  C.  536. 

'  This  principle  is  universally  acknowledged.  See  the  following  cases  in 
which  it. has  been  applied:  Burrill  v.  West,  2  N.  H.  190;  Wood  v.  Davis,  7 
Cranch  271 ;  Davis  v.  Wood,  1  Wheat.  6  ;  Paynes  v.  Coals  et  al.,  1  Munf.  373 ; 
Turpin  v."  Thomas,  2  Hen.  &  Munf.  139 :  Jackson  v.  Vedder,  3  Johns.  8  ;  Case 
V.  Beeves,  14  Johns.  79;  Ryer  v.  Atwater,  4  Day  431 ;  Killingworth  v.  Bradford, 
2  Overt.  204 ;  Wood  v.  Stephens,  1  S.  &  R.  75 ;  Estep  v.  Hutchman,  14  S.  &  R. 
435;  Tabor  v.  Per  rait  et  al.,  2  Gall.  565;  Tivambley  v.  Henley,  4  Mass.  641  ; 
Pesptiblica  v.  Davis,  3  Yeates  128  ;  Johnson  v.  Brown,  1  Wash.  187  ;  Stevelie  v. 
Read,  3  AVash.  C.  C.  274.  A  record  of  one  suit  cannot  be  used  as  evidence  in 
another,  on  the  ground  that  the  defendant  and  one  of  the  plaintiffs  in  the  latter 
suit  were  parties  to  the  former,  and  that  the  same  point  was  in  controversy  in 
both  ;  another  plaintiff  and  the  person  under  whom  both  plaintiffs  jointly 
claim,  not  having  been  parties  to  the  former  suit:  Cliapman  v.  Chapman,  1 
Munf.  398;  see  Carmachv.  Commonwealth,  5  Binn.  184.  The  record  of  a  judg- 
ment against  James  R.  is  admissible  as  evidence  in  an  action  against  Joseph  R., 
if  it  appear  that  the  latter  was  the  same  person,  and  in  fact  party  to  the  suit 
and  defended  it:  Stevelie  v.  Read,  2  Wash.  C.  C.  274.  As  to  who  are  parties  or 
privies,  see  Cleaton  v.  Chambless,  6  Rand.  86  ;  Gardner  v.  Buckbee,  3  Cow.  120 ; 
Dennison  v.  Hyde,  6  Conn.  508  ;  Nason  v.  Blaisdell,  12  Vt.  165  ;  Downer  v.  Mor- 
/        20 


324  JUDICIAL     DOCUMENTS. 

examining  the  witnesses  or  of  adducing  evidence  in  furtherance  of  his 
rights  :  whilst  the  law  of  attaint  subsisted  he  could  have  had  no 
attaint,  nor  can  he  challenge  the  inquest,  or  appeal ;  in  short,  he 
is  deprived  of  the  means  provided  by  the  law  for  ascertaining  truth 
and  excluding  error,  and  consequently  it  would  be  repugnant  to  the 
first  principles  of  justice  that  he  should  be  bound  by  the  result  of  an 
inquiry  to  which  he  was  altogether  a  stranger.'' 

P^  „  -.  *Hence,  if  one  bring  several  ejectments  against  several, 
upon  the  same  title,  a  verdict  against  one  is  not  evidence 
against  the  rest,  because  although  the  party  against  whom  the  ver- 
dict was  had  might  be  relieved,  if  it  was  not  good,  the  rest  could 
not."  So  if,  in  an  ejectment  between  a  devisee  and  the  heir-at-law, 
the  defendant  should  obtain  a  verdict,  on  proof  that  the  will  was  not 
duly  executed,  he  could  not  give  the  verdict  in  evidence  on  another 
ejectment  brought  by  another  devisee."*  Where  a  suit  was  instituted 
in  the  Ecclesiastical  Court  by  B.  against  (7.  for  a  divorce,  causd 
adulterii,  with  B.,  and  she  pleaded  that  she  was  married  to  B.,  and 
upon  proof  made  the  court  so  pronounced,  and  accordingly  dis- 
missed B.'s  libel,  it  was  held  that  the  judgment  was  not  evidence  in 
an  ejectment  between  other  parties,  in  which  the  marriage  between 
C.  and  B.  came  in  dispute.*  If,  in  an  information  against  A.,  issue 
were  taken  on  the  fact  whether  J.  S.  was  mayor  of  such  a  borough 
in  such  a  year,  and  it  were  to  be  found  that  he  was  not,  such  finding 
and  judgment  Avould  not  be  evidence  on  the  like  information 
af^aiast  B.^  So,  a  verdict  against  a  tenant  for  life  will  not  bind 
a  reversioner ;«  for  the  tenant  for  life  is  seised  in  his  own  right, 

"11  H.  4,  30  ;  Tr.  per  Pais  29,  30  ;  44  Ass.  5  ;  Kinnersley  v.  Orpe,  Doug,  57. 
Of  course,  if  a  person  sui  juris  be  made  a  party  without  his  knowledge  or  con- 
sent he  is  not  bound  by  the  judgment:  Robson  v.  Eaton,  1  T.  R.  62;  but  his 
proper  course  is  to  apply  to  set  the  proceedings  aside :  Huhart  v.  Phillips,  13 
M.  &  W.  702. 

<=3  Mod.  142;  Bell  v.  Ilarwoocl,  3  T.  R.  308;  Ld.  Raym.  1292;  Yern.  415; 
Ch.  Pr.  212;  12  Mod.  319,  339;  10  Mod.  292;  Carth.  77,  181 ;  5  Mod.  386;  2 
Jones  221 ;  and  see  Lord  Trimlestown  v.  Kemmis,  9  CI.  &  Fin.  781,  where  a 
judgment  in  ejectment  was  refused  in  evidence,  the  defendant  therein  being  a 
stranger  to  the  record. 

-»  B.  N.  P.  244. 

«  B.  N.  P.  244,  cites  liobin's  case,  C.  B.  1700;  De  Costa  v.  Villa  Real,  Str. 
961. 

'  B.  N.  P.  244.  8  B.  N.  P.  232  ;  Ilardr.  462  ;  Yelv.  32 

rison,  2  Gratt.  250;  Putnam  Free  School  v.  Fisher,  34  Me.  172;  Brock  v.  Gar- 
rett, 16  Ga.  487;  Lenox  v.  Notrebe,  1  Hempst.  251;  McClellan  v.  Kennedy,  8 
Md.  236. 


JUDGMENTS,     ETC. — PERSONS     IN     PRIVITY.  325 

and  that  possession  is  properly  his  own.  He  was  at  liberty,  before 
the  recent  change  in  the  law,''  to  pray  in  aid  the  reversioner  or 
not,  and  the  reversioner  could  not  possibly  controvert  the  matter 
where  no  aid  was  prayed.  But  if  the  reversioner  had  come  in 
upon  an  *aid-prayer,  he  might  then  have  had  an  attaint,  r;|:qo,^-| 
and  consequently  the  verdict  would  then  have  been  evi- 
dence against  him.' 

But  one  who  claims  in  privity  with  another,  is  in  the  same  situation 
with  the  latter  as  to  any  verdict  or  judgment,  either  for  or  against 
him,  whether  he  claim  as  privy  in  blood  or  estate,  or  as  privy  in  law.'' 
Accordingly  the  heir  may  give  in  evidence  a  verdict  for  his  ancestor.^ 
And  a   verdict  against  the  ancestor  binds  the  heir."  *     So  a  verdict 

?  3  &  4  Will.  IV.  c.  42. 

»  B.  N.  P.  232 ;  Hard.  462 ;  Yelv.  32.  Such  a  verdict  is  inadmissible  as 
evidence,  not  only  of  the  title,  but  also  of  any  fact  found  by  the  jury  ;  thus,  in 
order  to  prove  a  private  Act  of  Parliament,  which  could  not  be  found,  there  was 
produced  an  office  copy  of  a  special  verdict  upon  the  trial  of  a  feigned  issue  in 
Hil.  13  it  14  Car.  II.,  wherein  the  jury  found  that  in  the  Parliament  of  2  Edw. 
VI.  it  was  amongst  other  things  enacted  in  these  words  following — the  Act  was 
then  set  out,  whereby  certain  lands  in  Kent,  including  some  held  by  W.  T., 
were  disgavelled.  The  lands  in  question  were  identified  with  these.  But  it 
was  held  that  the  special  verdict,  being  res  inter  alios  acta,  was  not  admissible: 
Doe  dem.  Bacon  v.  Brydges,  6  M.  &  G.  (46  E.  C.  L.  R.)  282. 

^  Such  a  verdict  and  judgment  operate  as  an  estoppel,  when  pleaded  in  bar; 
Com.  Dig.,  Estoppel,  B. ;  Co.  Litt.  352:  Vooght  v.  Winch,  2  B.  &  Aid.  662; 
Outrani  v.  Moreicood,  3  East  346;  16  East  334;  IncJedon  v.  Burgess,  1  Show. 
28  ;  Hoo])er  v.  Hooper,  M'Clel.  &  Yo.  509.  One  having  lands  by  escheat,  tenant 
by  curtesy,  tenant  in  dower,  the  incumbent  of  a  benefice,  and  others  that  come 
in  by  act  of  law,  or  in  the  post,  are  mentioned  by  Lord  Coke  as  examples  of 
privies  in  law :  Co.  Litt.  352,  b.  So  a  husband  and  wife  are  bound  by  a  ver- 
dict against  the  wife,  as  to  her  estate  before  marriage :  Outram  v.  Morewood,  3 
East  346. 

'  Locke  v.  Norborne,  3  Mod.  141  ;   Outram  v.  Moreivood,  3  East  346. 

"  Locke  V.  Norhorne,  3  Mod.  142  ;  and  R.  v.  Hebden,  And.  389 ;  et  sic  de 
similibus,  Blakemore  v.  Glamorganshire  Canal  Company,  2  C,  M.  &  R.  133. 

^  There  is  no  privity  between  an  executor  or  administrator,  and  the  heir  or 
devisee  of  the  deceased  ;  and  a  judgment  against  the  former  is  not  evidence  in 
an  action  against  the  latter  to  charge  the  real  estate:  Masoti's  devisees  v.  Peters' 
Admrs.,  1  Munf.  437.  Whether  there  is  any  privity  between  an  executor  or 
administrator  and  a  legatee  of  the  personalty:  QucBre,  Ibid.  A  judgment  re- 
covered by  an  executor  is  no  bar  to  an  action  brought  by  the  administrator  de 
bonis  non  cum  testamento  anncxo,  for  the  same  cause :  Grout  v.  Chamberlain,  4 
Mass.  613.  There  being  no  privity,  the  first  judgment  cannot,  at  common  law, 
be  enforced  by  the  administrator  de  bonis  non,  but  becomes  inoperative.  By 
statute  1817,  c.  190,  |  18,  the  law  in  this  particular  is  altered  in  Massachusetts ; 
see  Allen,  Admr.,  v.  Irwin,  1  S.  »fc  R.  549.  M. 


326  JUDICIAL     DOCUMENTS. 

against  an  estate  or  testator  binds  his  representative."  So  in  eject- 
ment between  Doe  on  the  demise  of  A.  against  B.,  A.,  it  is  said,  is 
bound  by  a  verdict  for  the  defendant.  For  the  courts  take  notice 
that  in  ejectment  the  lessor  of  the  nominal  plaintiff  is  the  party  really 
r*^9'~l  iiiterested,  *and  upon  the  trial,  A.  had  the  opportunity  to  cross- 
examine  the  witnesses  for  B.,  and  to  controvert  their  testi- 
mony.° 

If  several  remainders  be  limited  by  the  same  deed,  a  verdict  for 
one  in  remainder  will  be  evidence  for  the  next  in  remainder  against 
the  same  party. ^  But  a  verdict  against  a  particular  tenant  for  life 
did  not  bind  the  reversioner,  unless  he  came  in  to  defend  upon  aid- 
prayer  :'*  and,  cons^uently,  for  want  of  mutuality,  a  verdict  for  the 
tenant  for  life  would  not  have  been  evidence  for  the  reversioner  unless 
called  in  aid  against  the  same  party .■"  Partly  upon  the  same  prin- 
ciple,  judgment  of  ouster  against  *a  mayor  is  evidence  upon 
a  quo  warranto  against  one  admitted  by  him.^ 

Two  plaintiffs  brought  an  action  for  a  diversion  of  water  from  their 

"  R.  V.  Hebden,  And.  389. 

»  Bac.  Ab.,  tit.  Ev.  F. ;  B.  N.  P.  232  :  Hardr.  472  ;  Gilb.  Law  of  Ev.  33  ;  Asliii 
V.  Parkin,  2  Burr.  665  ;  1  Smith  L.  C.  263,  and  note.  It  may  be  doubted 
whether  the  older  authorities  on  this  subject  do  not  relate  to  the  now  obsolete 
action  of  ejectioue  jirmce,  in  which  the  pleadings  were  carried  on  and  issue 
joined  as  in  other  oi'dinary  actions  of  trespass.  It  has,  however,  lately  been 
held,  that  a  judgment  for  the  defendant  in  a  former  ejectment  is  evidence  for 
him  on  a  subsequent  ejectment,  the  lessor  of  the  plaintiff  being  the  same:  Doe 
d.  Strode  v.  Seaton,  2  C,  M.  &  R.  728  :  Doe  v.  Huddart,  Ibid.  316  ;  and  see 
Wright  v.  Tatham,  1  Ad.  &  E.  (28  E.  C.  L.  R.)  3.  And,  in  Doe  v.  Wright,  10 
Ad.  &  E.  (37  E.  C.  L.  R.)  763  ;  in  an  action  in  the  name  of  the  nominal  plaintiff 
for  the  mesne  profits  on  and  from  10th  July  1826,  on  a  plea  that  plaintiff  was 
not  possessed,  a  replication  that  the  plaintiff  had  by  verdict  recovered  a  term  on 
a  demise  laid  on  that  day  in  an  action  of  ejectment  against  the  defendant,  was 
held  good  by  way  of  estoppel.  But,  from  Doe  v.  Wellsican,  2  Ex.  369,  where, 
in  a  similar  action,  a  replication  -that  the  plaintiff  had  recovered  a  term  by  a 
judgment  Vjy  default  upon  a  demise  laid  at  a  later  day  than  that  mentioned  in 
the  declaration  for  mesne  profits,  but  including  part  of  the  period  covered  by 
the  term,  was  held  bad,  it  would  seem  that  at  most  the  estoppel  is  not  only  upon 
the  point,  that  on  the  particular  day  named  in  the  demise  the  lessor  was  entitled 
to  recover,  not  that  he  was  entitled  at  any  earlier,  or  any  later  day. 

P  Pyke  v.  Crouch,  1  Ld.  Raym.  730 ;  B.  N.  P.  232 ;  Ilardr.  462 ;  Doe  v.  Tyler ^ 
OBing.  (19  E.  C.  L.  R.)  390. 

"»  B.  N.  P.  232  ;  Ilardr.  436;  Bac.  Ab.,  V.\.  F. ;  but  see  Phillips  317;  Ilardr. 
472;  Gilb.  Law  of  Ev.  35,  36  ;  Bishop  of  Lincoln  v.  Sir  W.  Ellis,  2  Gwill.  632. 

'  N.  N.  P.  232,  233  ;  Ca.  K.  B.  319. 

"  P>.  N.  J*.  231  ;  2  Barn.  370;  It.  v.  Lisle,  And.  163  ;  R.  v.  Grimes,  Burr.  2599  j 
5  T.  R.  72;   11  St.  Tr.  216;  see  tit.  (iuo  Warkanto. 


JUDGMENTS,     ETC. — PERSONS     IN     PRIVITY.  328 

works.  One  of  them,  whilst  in  possession  of  the  same  works,  had  re- 
covered against  the  same  defendants  for  a  similar  injury.  It  was 
held  that  this  was  primd  facie  evidence  of  privity  in  estate  with  the 
former  plaintiff  to  render  the  former  verdict  and  judgment  admissible 
in  evidence  against  the  defendants  ;'  and  the  former  verdict  and  judg- 
ment were  held  to  be  admissible  between  them  as  privies,  although 
those  who  offered  the  evidence  had  been  examined  in  the  former  suit." 
But  although  a  verdict  and  judgment  for  a  party  is  evidence  for 
one  claiming  in  privity  with  him,  this  must  be  understood  of  a  claim 
acquired  subsequently  to  the  verdict."  If  a  party,  after  a  verdict 
and  judgment  against  him,  assign  his  interest,  the  assignee  is  bound 
by  the  verdict.  After  a  verdict  against  J.  S.  and  judgment,  J.  S. 
aliened  to  J.  N.,  and  it  was  held  that  the  verdict  was  evidence  against 
J.  N.  ;  for  it  would  have  been  evidence  against  J.  S.  at  the  time  of 
the  transfer,  and  the  substitute  cannot  be  in  a  better  condition  than 
the  principal.^  ^ 

*  Blakemore  v.  Glamorganshire  Canal  Company,  2  C,  M.  &  R.  133;  Strutt  v. 
Bovingdon,  5  Esp.  58,  59. 

"  Blakemore  v.  Glamorganshire  Canal  Company,  2  C,  M.  &  R.  139  ;  see  also 
Brook  V.  Carpenter,  3  Bing.  (11  E.  C.  L.  R.)  379  ;  and  Vol.  II.,  tit.  Malicious 
Prosecution  ;  see  also  Davis  v.  West,  6  C.  &  P.  (25  E.  C.  L.  R.)  172;  where  a 
conviction  obtained  on  the  evidence  of  one  defendant  was  admitted  in  favor  of 
co-defendants. 

^  Doe  V.  Earl  of  Derby,  1  Ad.  &  E.  (28  E.  C.  L.  R.)  787  ;  and  the  rule  laid  down, 
Com.  Dig.,  Ev.  (A.  5),  viz.,  that  a  verdict  is  evidence,  for  one  under  vrhom  any 
of  the  present  parties  claim,  must  be  so  understood.  If  it  could  be  understood 
to  extend  to  other  lands  under  the  same  title  previous  to  the  verdict,  the  effect 
of  such  verdict  might  be  carried  back  to  an  indefinite  extent:  Per  Littledale,  J., 
1  Ad.  &  E.  (28  E.  C.  L.  R.)  790.     So  a  verdict  against  a  lessor  is  admissible. 

y  2  Roll.  Abr.  680;  Bac.  Abr.,  Ev.  F.  The  answer  of  a  Dean  and  Chapter  to 
a  bill  filed  to  establish  a  farm  modus,  admitting  a  district  modus,  is  evidence 
against  a  subsequent  lessee  of  the  Dean  and  Chapter  in  a  suit  by  him  for  tithe 
in  kind.  It  is  said  that  a  verdict  and  judgment  for  or  against  a  lessee  is  evi- 
dence for  or  against  a  reversioner:  Com.  Dig.,  "Ev.  (A.  5)  ;  Gilb.  Law  of  Ev.  35, 
36  ;  Rushworth  v.  Countess  of  Pembroke,  Ilardr.  472.  This,  it  seems,  is  to  be 
understood  of  a  lessee  in  the  old  action  of  ejectione  firmce ;  and  see  Pees  v. 
Walters,  3  M.  &  W.  527.     The  proposition  from  Comyn  is  at  least  doubtful. 

'  So  where  a  mortgagor,  when  sued  for  possession,  defended  on  the  ground  of 
usury,  but  failed  in  his  defence,  and  afterwards  assigned  his  right  to  A.,  who 
brought  a  writ  of  entry  against  the  mortgagee  and  attempted  to  support  his 
action  by  proof  of  the  usury  ;  the  former  judgment  was  held  to  be  a  conclusive 
defence  against  A.  :  Adams  v.  Barnes,  17  Mass.  365.  It  was  also  said,  by  Jack- 
son, J.,  in  the  same  case,  that  if  in  the  first  suit,  the  mortgage  had  been  proved 
to  be  usurious,  the  judgment  against  the  mortgage  would  have  been  an  estoppel 
to  him  and  to  all  persons  claiming  under  him.     In  Oiitram  v.  Morewood,  3 


329  JUDICIAL     DOCUMENTS. 

r*Q9Ql  *-^^  ejectment  on  the  several  demises  of  a  mortgagor  and 
mortgagee,  a  judgment  in  an  ejectment  brought  against  the 
mortgagor  after  mortgage  is  not  admissible  for  the  lessor  of  the 
plaintiff  in  the  former  action  as  against  the  mortgagee,  although  the 
judgment  Avas  entered  in  pursuance  of  the  award  of  an  arbitrator,  to 
whom  the  cause  was  referred,  there  being  no  evidence  to  show  that 
the  mortgagee  took  any  part  in  the  proceedings/ 

It  is  not  essential  that  either  the  parties  or  the  form  of  action 
should  be  precisely  the  same,  if  they  are  substantially  the  same." 
Thus  in  ejectment,  as  has  been  seen,  the  law  recognises  the  real 
parties.*  Where  an  action  of  trover  was  brought  against  a  creditor 
and  the  sheriff,  for  goods  levied  under  an  execution,  and  the  defend- 
ants had  a  verdict,  the  judgment  was  held  to  be  a  bar  to  a  subsequent 
action  of  assumpsit  against  the  creditor  alone.*"  So  a  verdict  for  the 
defendant,  in  an  action  for  penalties  for  usury  on  a  bond,  was  held 
good  evidence  for  him  in  an  action  on  the  bond  as  an  answer  to  the 
plea  of  usury."  In  an  action  for  a  trespass  in  the  plaintiff's  fishery,*^ 
P^qqn-i  a.  *verdict  for  the  plaintiff  in  a  former  action,  against  one 
who  justified  as  the  servant  of  J.  S.,  was  admitted  in  evi- 
dence against  the  defendant  in  the  second  action,  upon  its  appearing 

'  Doe  V.  Webber,  1  Ad.  &  E.  (28  E.  C.  L.'  R.)  119. 

*  Supra,  pp.  326,  327,  and  n.  (o).  So  in  replevin  the  landlord,  or  person 
under  whom  the  defendant  made  cognizance,  was  held  substantially  a  party  : 
Hancock  V.  Welsh,  1  Stark.  (2  E.  C.  L.  R.)  347. 

"  Hitchin  V.  Campbell,  2  W.  Bla.  827 ;  3  Wils.  804 ;  see  below,  p.  333,  and 
the  cases  there  cited. 

"  Cleve  V.  Powell,  1  M.  &  Rob.  228. 

^  Kinnersley  v.  Orpe,  Dougl.  56.  At  the  trial  it  was  held  to  be  conclusive 
evidence;  but  the  Court  of  King's  Bench  held  that  it  was  admissible,  but  not 
conclusive :  see  Simpson  v.  Pickering,  1  C,  M.  &  R.  529 ;  see  Doe  v.  Earl  of 
DerJjy,  1  Ad.  &  E.  (28  E.  C.  L.  R.)  791  ;  Outram  v.  Morewood,  3  East  346," per 
Lord  Ellenborough.  It  is  not  sufficient  to  show  that  a  party  to  the  former  suit 
might  possibly  be  interested  in  the  subsequent  suit. 

East  366,  Lord  Ellenborough  questioned  the  admissibility  of  the  former  record, 
in  the  case  o(  Kinnersley  v.  Orp'e;  and  in  Case  v.  Peeves,  14  Johns.  82,  Spencer, 
C.  J.,  pronounced  it  to  b&  reconcilable  with  the  rules  of  evidence,  only  on  the 
ground  that  both  suits  were  substantially  against  the  same  person.  In  an 
action  of  ejectment  between  A.  and  B.  the  record  of  a  former  judgment  in  an 
action  of  trespass  between  B.  and  cestui  que  trust  of  A.,  has  been  admitted  in 
evidence  in  Pennsylvania:  Calhoun's  Lessee  v.  Dunning,  4  Dall.  120.  In  Ken- 
tucky, no  other  persons  can  be  considered  parties  to  a  suit,  so  as  to  be  bound 
by  the  judgment,  but  those  who  appear  by  the  record  to  be  such  ;  and  extrinsic 
evidence  is  not  admissible  to  prove  that  persons  not  named  in  the  record  were 
parties:  Allen  v.  Hall,  1  Marsh.  526.  M. 


JUDGMENTS,    ETC. — PERSONS    IN     PRIVITY.  330 

that  the  defendant  in  this  action  had  acted  by  the  command  of  J.  S., 
for  it  -was  considered  that  J.  S.,  was  the  real  party  in  both  actions. 
But  the  evidence  is  not  conclusive.  So  a  verdict  against  one  defend- 
ant  was  held  to  be  evidence  of  the  plaintiff's  right  on  a  second  action 
against  the  defendant  and  two  others,  who  justified  under  the  former 
defendant  for  a  subsequent  injury  affecting  the  same  right.®  But  a 
judgment  in  use  and  occupation  against  A.  and  B.  has  been  thought 
not  to  be  evidence,  in  an  action  by  the  same  plaintiff  for  use  and 
occupation  of  the  same  premises  against  A.,  as  it  might  have  been 
obtained  on  the  admission  of  B.,  which  might  or  might  not  be  evi- 
dence against  A.,  according  to  circumstances. '^ 

A  verdict  in  an  action  by  the  vicar  against  the  occupier  of  land, 
for  tithes,  is  evidence  against  another  occupier  of  the  same  land.^ 
So  a  decree  in  favor  of  a  vicar  as  to  his  right  to  small  tithes,  against 
an  impropriator,  is  evidence  for  his  successors  ;**  and  a  judgment 
against  the  schoolmaster  of  a  hospital,  as  to  rights  claimed  in  respect 
of  his  oflfice,  is  evidence  against  his  successors.' 

A  record  is  also  evidence  against  one  who  might  have  beei\  a  party 

to  it,  for  he  cannot  complain  of  the  *want  of  those  advantages. 

•  •  r*33l1 

which  he  has  voluntarily  renounced.''  L         J 

It  is  a  general  rule,  that  a  verdict  shall  not  be  used  as  evidence 
against  a  man  where  the  opposite  verdict  would  not  have  been  evi- 
dence for  him  ;  in  other  words,  the  benefit  to  be  derived  from  the 
verdict  must  be  mutual.^  ^     This  seems  to  be  no  more  than  a  branch 

*  Strutt  V.  Bovingdon,  5  Esp.  56.  In  Buller's  N.  P.  40,  it  is  said  that  a  ver- 
dict on  an  issue  out  of  Chancery,  to  wliich  only  one  of  the  defendants  was 
party,  -may  be  read  against  all  the  defendants,  to  prove  the  time  of  the  act 
of  bankruptcy. 

'  Chrisiy  v.  Tancred,  9  M.  &  W.  438. 

e  Benson  v.  Olive,  2  Gwill.  701  ;  Travis  v.  Chaloner,  3  Gwill.  1237. 

''  Carr  v.  Eeaton,  3  Gwill.  12C1  ;  but,  as  it  is  said,  not  conclusive  evidence, 
unless  the  Ordinary  be  a  party  to  the  first  suit. 

'  Lord  Brounker  v.  Sir  B.  Atkins,  Skin.  15. 

^  Bac.  Abr.,  Ev.  F. 

'  B.  N.  B.  232,  233  ;  Ca.  K.  B.  319  ;  Hardr.  472 ;  Bac.  Abr.  Ev.,  F. ;  4  Maul.  & 
Sel.  479  ;  Co.  Litt.  352  -,  1  T.  R.  86  ;  Com.  Dig.,  Estoppel,  D. ;  E.  v.  The  Warden 
of  the  Fleet,  B.  N.  P.  233  ;  12  Mod.  337  -,  Gaunt  v.  Wainman.  3  Bing.  N.  C.  (32 
E.  C.  L.  R.)  70,  per  Tindal,  C.  J. ;  Doe  v.  Errington,  6  Bing.  N.  C.  (37  E.  C.  L. 
R.)  83.  In  the  case  of  Whately  v.  Menheim  and  Levy,  2  Esp.  C.  608,  Lord  Ken- 
yon  is  said  to  have  held,  that  a  verdict  on  an  issue  out  of  Chancery,  to  try  the 

'  Whenever  equity  would  subrogate  a  second  plaintiff  to  all  the  rights  of  the 
first,  the  judgment  is  conclusive  of  every  fact  necessarily  adjudicated  against 
the  defendant  who  is  primarily  liable:  Lloyd  v.  Barr,  1  Jones  41. 


331  JUDICIAL     DOCUMENTS. 

of  the  former  rule,  that  to  make  the  judgment  conclusive  evidence 
the  parties  must  be  the  same,  for  then  the  benefit  and  prejudice 
would  be  mutual  and  reciprocal.  Where  the  parties  are  not  the 
same,  one  who  would  not  have  been  prejudiced  by  tlie  verdict  cannot 
afterwards  make  use  of  it,  for  between  him  and  a  party  to  such  ver- 
dict the  matter  is  res  nova,  although  his  title  turn  upon  the  same 
point.™  And  the  verdict  ought  not  to  be  admitted  to  prejudice  the 
jury  against  the  former  litigant."  Besides,  the  former  verdict  may 
have  *been  obtained  upon  the  evidence  of  the  party  who  after- 
L  '  "'-'  wards  seeks  to  take  advantage  of  it ;  and  this  is  one  reason 
why  a  conviction  upon  an  indictment,  which  is  always  at  the  suit  of 
"the  king,  is  not  evidence  in  a  civil  action."^ 

From  the  principles  announced,  it  seems  to  be  a  general  conse- 
quence that  a  verdict  in  a  civil  proceeding  will  not  be  evidence  either 
against,  or  for  a  party  in  a  criminal  proceeding.     The  acquittal  in  an 

question  whether  A.  and  B.  were  partners,  was  evidence  for  a  third  person,  in 
an  action  against  them  to  prove  the  partnership.  Sed  qu,,  for  there  was  no 
mutuality ;  and  the  verdict  might  have  been  obtained  on  the  evidence  of  the 
party  who  afterwards  took  advantage  of  it. 

^  B.  N.  B.  232 ;  3  Mod.  141  ;  Hardr.  472. 

°  In  Gilb.  Law  of  Ex.  the  principle  is  thus  expounded  :  But  a  person  that  hath 
no  prejudice  by  the  verdict  can  never  give  it  in  evidence,  though  his  title  turn 
upon  the  same  point,  because,  if  he  be  an  utter  stranger  to  the  fact,  it  is  per- 
fectly res  nova  between  him  and  the  defendant;  and  if  it  be  no  prejudice  to  the 
plaintiff,  had  the  fate  of  the  verdict  been  as  it  would,  he  cannot  be  entitled  to 
reap  a  benefit ;  for  it  would  be  unequal,  since  the  cause  is  a  new  matter  between 
the  parties,  that  the  jury  should  be  swayed  by  any  prejudice ;  for  the  letting  in 
of  pre-judgments  supposes  that  the  case  has  been  already  decided,  and  that  it 
is  not  tried  and  debated  as  a  new  matter,  but  as  the  effect  of  some  litigious  cross 
in  the  defendant,  that  holds  out  the  possession  when  the  cause  has  been  decided 
against  him  ;  and  this  ought  not  to  be  thrown  out  upon  him  on  a  new  inquiry. — 
The  same  principle  applies  to  depositions  :  Hardr.  472. 

•*  B.  N.  P.  233  ;  Stra.  68  ;  Gibso)i  v.  Macarty,  Ann.  311;  Bartlett  v.  Pickersgill, 
Burr.  2255;  Smith  v.  Rummons,  1  Camp.  9;  Hathaway  v.  Barrow,  Ibid.  151. 
And  the  rule  applies  although  the  judgment  was  not  so  abtained  :  Blakemore  v. 
Glamorganshire  Canal  Company,  2  C,  M.  &  R.  139,  ^e>-  Parke,  B. 

'  In  an  action  of  slander  for  charging  the  plaintiff  with  stealing  certain  pro- 
perty, a  record  of  conviction  of  the  plaintiff  for  stealing  the  same  property  was 
held,  in  New  York,  to  be  admissible  prima  facie  evidence  to  prove  a  plea  of 
justification  of  the  truth  of  the  words  spoken  ;  and  it  was  held  that  the  plaintiff 
might  disprove  the  larceny,  by  showing  the  fals'ty  of  the  evidence  on  which  the 
conviction  was  founded  :  It  was,  however,  further  held  that  the  record  of  con- 
viction could  not  be  received  in  evidence  at  all,  if  the  defendant  was  a  witness 
in  the  criminal  prosecution :  Mayhee  v.  Avery,  18  Johns.  352  ;  see  England  v. 
Bourke,  3  Esp.  C.  80;  Cook  v.  Field,  3  Esp.  C.  133.  M. 


JUDGMENTS,    ETC. — MUTUALITY.  332 

action  oujrht  not  to  be  admitted  as  evidence  in  bar  of  an  indictment, 
because  the  parties  are  not  the  same,  and  the  king  or  the  public  ought 
not  to  be  prejudiced  by  the  default  of  a  private  person  in  seeking  his 
remedy  for  an  injury  to  himself;  especially  as  upon  the  trial  of  the 
indictment  the  testimony  of  the  former  plaintiff  is  admissible,  which 
was  before  excluded  by  his  being  a  party  to  the  cause. 

By  such  additional  evidence  the  jury  may  be  induced  to  come  to  a 
conti-ary  conclusion.''  Neither,  as  it  seems,  is  a  verdict  for  the  plaiyitiff 
in  a  civil  action  evidence  upon  an  indictment  ;'^  for  although  the 
defendant  has  had  the  opportunity  to  cross-examine  the  witnesses 
and  controvert  the  testimony  of  his  opponent,  yet  it  would  be  hard 
that  upon  a  criminal  charge,  which  concerns  his  liberty,  or  even  his 
life,  he  should  be  bound  by  any  default  of  his  in  defending  his  pro- 
perty.^ 

In  addition  to  this,  there  is  a  want  of  mutuality ;  the  parties  are 

not  the  same,  and  the  party  would,  until  the  recent  change  in  the 

law,  have  lost  the  privilege  of  proceeding  against  the  jury  in  case  of 

a    false  verdict,  by  attaint.      It    is  also  to    be  observed,  that    the 

adjudication  in    *the  civil    case  would  seldom    be  commen-    ^  „„„^ 

r  3831 
surate  with  the  matter  intended  to  be  proved  in  the  criminal    '-  -' 

case,     since    evidence    sufficient    to    render    a    man    responsible     in 

damages  may  be  insufficient  to  prove  that  he  acted  with  a  criminal 

intention. 

Secondly,  as  to  the  identity  of  the  fact.  It  is  essential  not  only 
that  the  parties  should  be  the  same,  but  that  the  same  fact  should 
have  been  in  issue  in  the  former  cause ;  for  if  it  was  not  in  issue,  the 
jury  could  not  have  been  attainted  for  a  false  verdict;'  nor  could  a 
new  trial  have  been  had  upon  it  in  that  cause. 

A  verdict  for  the  same  cause  of  action  between  the  same  parties 
is  absolutely  conclusive.  And  the  cause  of  action  is  the  same,  when 
the  same  evidence  will  support  both  actions,  although  the  actions 
may  happen  to  be  founded  on  different  writs. ^  ^     Thus  a  judgment 

P  Gibson  v.  Macarty,  Ca.  temp.  Hardw.  312;  11  St.  Tr.  222. 

1  11  St.  Tr.  222. 

'  B.  N.  P.  233  ;  Hob.  53  ;  Ricardo  v.  Garcias,  12  CI.  &  Fin.  368  ;  Carter  v. 
James,  13  M.  &  W.  137. 

"  Per  Lord  Hardwicke,  in  Smith  v.  Gibson,  R.  T.  H,  319,  there  are  several 
cases  where  a  recovery  in  one  action  will  be  a  bar  to  another  action  of  the  same 

'  In  an  indictment  for  forgery  in  Illinois  the  court  held  the  record  of  a  civil 
suit  the  best  evidence  to  show  the  amount  the  defendant  intended  to  defraud 
the  person  whose  name  he  forged :  Noble  v.  People,  1  Breese  29.  G. 

^  Johnson  v.  Smith,  8  Johns.  383  ;  s.  p.  Thus  a  judgment  for  the  defendant 
in  trespass  de  bonis  asportatis  is  a  bar  to  an  action  of  assumpsit  for  the  price  of 


333  JUDICIAL     DOCUMENTS. 

in  trespass  will  be  a  bar  to  an  action  of  trover  for  the  same  taking.' 
And  a  verdict  in  trover  will  be  a  bar  to  an  action  for  money  had  and 
received  for  the  sale  of  the  same  goods."  A  recovery  in  trespass  at 
common  law  varied  a  writ  of  ravishment  of  Avard.'^     This  is  the  test 

nature  ;  but  that  is  where  the  first  recovery  is  a  satisfiction  for  the  very  thing 
demanded  by  the  second  action.  In  an  action  of  trover  the  plaintiff  recovers 
damages  for  the  thing,  and  it  is  as  a  sale  of  the  thing  to  the  defendant,  which 
vests  the  property  in  him,  and  therefore  it  is  a  bar  to  an  action  of  trespass  for 
the  same  thing :  and  therefore  it  was  held,  that  damages,  on  a  contempt  in  pro- 
hibition, which  are  recoverable  only  from  the  time  of  the  prohibition  granted, 
were  no  bar  to  an  action  for  suing  the  plaintiff  in  the  Admiralty  Court,  where 
the  Court  had  no  jurisdiction;  see  Sparri/^s  case,  5  Co.  61  ;  Preface  to  8  Co., 
and  6  Co.  7  a;  and  see  Vol.  II.,  tit.  Record. 

*  Bla.  R.  831  ;  Com.  Dig.,  Action,  K.  3  ;  see  Carter  v.  James,  as  to  different 
securities  for  the  same  debt. 

"  Hitchen  v.  Campbell,  2  W.  Bl.  827 ;  3  Wils.  308  ;  see  also  Lechmere  v.  Top- 
lady,  2  Vent.  169 ;  1  Show.  146. 

^  Hob.  94 :  2  Inst.  202. 

the  same  goods  :  Rice  v.  King,  7  Johns.  20.  In  North  Carolina  it  is  held  that ' 
a  recovery  in  trespass  is  not  a  bar  to  an  action  of  detinue,  unless  the  damages 
in  trespass  were  given  for  the  property  :  Belch  v.  Holleman,  2  Ilayw.  328.  But 
a  recovery  in  trespass  was  held,  in  South  Carolina,  to  be  a  bar  to  an  action  of 
trover,  on  the  ground  that  in  the  former  action  the  plaintiff  was  entitled  to  dam- 
ages, not  only  for  the  injury  done  in  taking  away  the  goods  but  the  value  of 
them  :  Johnson  v.  Parker,  1  N.  &  McC.  1.  A  recovery  against  one  partner  in  a 
printing  office  for  a  libel,  and  satisfaction  of  the  judgment,  are  a  bar  to  an  action 
against  the  other  partner  for  the  same  publication  :  Thomas  v.  Rumsey,  6  Johns. 
26.  But  a  mere  recovery  against  one  of  two  or  more  joint  tort-feasors  is  not, 
in  general,  a  bar  to  an  action  against  another  ;  the  former  judgment  must  have 
been  satisfied;  see  Campbell  v.  Phelps,  1  Pick.  62;  Yelv.  68  note,  (Amer.  ed.)  ; 
Sheldon  v.  Kibbe,  3  Conn.  214 ;  Hatokins  v.  Hation,  1  N.  &  McC.  318  :  Ewing  v. 
Ford,  1  Marsh.  475  ;    Wilkes  v.  Jackson,  2  Hen.  &  Munf.  345.  M. 

In  Connecticut  a  former  judgment  in  a  court  of  competent  jurisdiction,  in 
which  the  right,  in  controversy  in  a  subsequent  action,  was  directly  decided  be- 
tween the  same  parties,  is  admissible  in  evidence  and  conclusive,  although  the 
cause  of  action  in  the  former  suit,  and  the  object  to  be  attained  by  it  were  dif- 
ferent. Therefore  when  the  defendant  in  an  action  of  ejectment,  brought  to 
recover  possession  of  mortgaged  premises,  set  up  the  defence  of  usury  under  the 
general  issue,  and  the  plaintiff  to  defeat  that  defence  offered  in  evidence  the 
record  of  a  former  judgment,  in  a  suit  bi'ought  by  him  on  a  note  for  the  mort- 
gage debt,  to  which  the  defendant  pleaded  non  assumpsit  with  notice  of  usury, 
and  on  that  issue  a  verdict  was  given  and  judgment  rendered  for  the  plaintiff, 
it  was  held  that  such  record  was  admissible  and  conclusive  against  the  defence  : 
Belts  V.  Starr,  5  Conn.  Rep.  550.  I. 

See  also  Cleaton  v.  Chnmbless,  6  Rand.  86;  Gates  v.  Goreham,  5  Vt.  317; 
Shafer  v.  Stonebreaker,  4  Gill  &  John's,  345 ;  Towns  v.  Ninion,  5  N.  H.  259 ; 
Standish  v.  Parker,  2  Pick.  20  ;  Marsh  v.  Pier,  4  Rawle  273  ;  Agnew  v.  McElroy^ 
10  S.  &  M.  552 ;   Gilbert  v.  Thompson,  9  Cush.  348. 


JUDGMENTS,     ETC. — IDENTITY     OF     THE     FACT.  334 

to  know  ^whether  a  final  determination  in  a  former  action  is  r^oo^-i 
a  bar,  or  not,  to  tlie  subsequent  action  ;  and  it  runs  through 
all  the  cases  in  the  books,  both  in  real  and  personal  actions.  It 
was  resolved  in  Ferrer  s  case,""  that  where  one  is  barred  in  any  action, 
real  or  personal,  by  judgment  upon  confession,  demurrer,^  verdict, 
&c.,  he  is  barred  as  to  that,  or  the  like  action  of  the  like  nature  for 
the  same  thing  for  ever ;  for  expedlt  reipuhlioce  ut  sit  finis  litium. 
By  actions  of  the  like  nature  are  meant  actions  of  the  same  degree, 
and  where  a  writ  cannot  be  had  of  a  higher  nature.''  All  personal 
actions  are  of  the  same  degree ;''  but  a  verdict  in  a  personal  action 
was  not  a  bar  to  a  real  action  brought  in  the  same  right.'' 

Where,  however,  the  real  merits  of  the  present  action  have  not 
been  at  all  inquired  into  in  a  former  proceeding,  issue  may  be  taken 
on  the   fact,  if  the  judgment  be   pleaded  in  bar."     Thus  a  recovery 

"^  6  Rep.  7.  Overton  v.  Harvey,  1  L.  M.  &  P.  233.  It  must  be  for  the  same 
thing,  therefore  a  second  action  may  be  brought  upon  the  same  agreement  for 
the  breach  of  a  different  stipuhition  in  it :  Bristowe  v.  Fairclough,  1  M,  &  G. 
(39  E.  C.  L.  R.)  US ;  Callander  v.  Dettrich,  4  M.  &  G.  (43  E.  C.  L.  R.)  68,  and 
a  verdict  for  defendant  on  a  plea  of  lib.  ten.  in  an  action  for  trespass  to  plaintiff's 
close,  will  not  estop  the  plaintiff  in  another  action,  unless  it  be  shown  that  the 
trespasses  in  both  actions  were  committed  on  the  same  spot:  Smith  v.  Royston, 
8  M.  &  W.  386. 

y  But  see  Boileau  v.  Rutlin,  2  Ex.  665 ;  Uutt  v.  Morrell,  3  Ex.  240. 

^  A  bar  in  a  writ  of  aiel  was  held  to  be  a  bar  in  a  writ  of  besaiel ;  and  in  a 
collateral  action,  as  cosenage ;  for  these  are  ancestral,  and  of  the  same  nature  ; 
but  would  not  bar  a  writ  of  right :  3  Wils.  308  ;  6  Rep.  7. 

*  And,  therefore,  in  an  action  of  trespass  for  taking  a  mare,  it  is  a  good  plea 
to  the  writ,  that  a  replevin  is  pending  for  the  same  taking :  3  Wils.  308  ;  5  Rep. 
61,  b.  And  a  verdict  for  the  defendant  in  replevin,  upon  a  plea  of  non  tenuit 
to  a  cognizance  for  rent  arrear,  concludes  the  plaintiff  when  sued  by  the  party 
under  whom  cognizance  was  made  for  the  same  rent :  Hancock  v.  Welsh,  1 
Stark.  (2  E.  C.  L.  R.)  347. 

**  See  Outram  v.  Morewood,  3  East  359. 

*  Lepping  v.  Kedgewin,  1  Mod.  207  ;  Hitchin  v.  Campbell,  2  W.  Bl.  827  ;  3 
"Wils.  304.  If  the  suit  has  been  discontinued,  or  the  plaintiff  been  nonsuit,  such 
judgment  is  not  conclusive:  3  Bla.  Com.  296.  Withdrawing  a  juror,  or  dis- 
charging jury  by  consent,  cannot  be  pleaded  as  a  bar  in  a  second  action: 
Sanderson  v.  Nestor,  R.  &  Moo.  (21  E.  C.  L.  R.)  402 ;  Everett  v.  Youells,  3  B. 
&  Ad.  (23  E.  C.  L.  R.)  349.  But  the  court  would  stay  the  proceedings  in  the 
second  action:  Gibbs  v.  Ralph,  14  M.  &  W.  804.  A  judgment  for  plaintiff  on 
a  plea  in  abatement  for  nonjoinder  is  no  bar  to  another  action  against  the 
parties  not  joined:  Godson  v.  Smith,  2  Moo.  (4  E.  C.  L.  R.)  157.  So,  in  cases 
of  appeal  or  orders  of  removal,  if  the  order  be  quashed,  but  not  upon  the  merits, 
numerous  cases  show  that  the  respondent  parish  may  obtain  another  order ;  see 
R.  V.  Wheelock,  5  B.  &  C.  (11  E.  C.  L.  R.)  511  ;  R.  v.  St.  Ann's,  Westminster, 
2  Sess.  Ca.  525. 


335  JUDICIAL     DOCUMENTS. 

r^^qof;-]    in   one  action  cannot  be  ^pleaded  in  bar  of  a  second,  where 
no  evidence  on  the  trial  of  the  first  action  was  given  in  sup- 
port of  the  claim  on  which  the  second  is  founded.*^     Where  issue  is 
r*^^fi1    *^^®"  ^^  **^6  fact,  whether  the  second  action  is  brought  for 
the  same  cause  of  action  as  the  first,  evidence  is   admissible 


el 


of  what  passed  at  the  trial, 

^  Seddon  v.  Tutop,  6  T.  R.  607.  So  in  the  cases  of  Ravee  v.  Farmer,  4  T,  R. 
146,  and  GoUgliihj  v.  Jellicoe,  Ibid,  in  note,  it  was  held  that  an  award  made  of 
all  matters  in  difference  between  the  parties  was  no  bar  to  any  cause  of  action 
that  the  plaintiff  had  against  the  defendant  at  the  time  of  the  reference,  if  the 
plaintiff  could  prove  that  the  subject-matter  of  the  action  was  not  inquired  into 
before  the  arbitrator.  In  the  case  of  Dunn  v.  Murray,  9  B.  &  C.  (17  E.  C.  L. 
R.)  780,  where  a  claim  within  the  scope  of  a  reference  to  an  arbitrator  was  not 
brought  forward  by  the  plaintiff  as  a  matter  in  difference,  it  was  held  that  he 
could  not  afterwards  make  it  the  subject-matter  of  a  fresh  action.  And  there 
Lord  Tenterden,  in  giving  judgment,  referred  to  that  of  Lord  Ellenborough  in 
Smith  V.  Johnson,  15  East  213,  who  laid  it  down  that  where  all  matters  in  differ- 
ence are  referred,  the  party,  as  to  any  matter  included  within  the  scope  of  such 
reference,  ought  to  come  forward  with  the  whole  of  his  case  ;  and  see  Henderson 
V.  Henderson,  3  Hare  115.  A  plaintiff  brought  debt  for  rent  and  for  stone 
taken  from  a  quarry,  and  before  the  trial  brought  another  action  for  improperly 
quarrying  stone,  with  a  count  in  trover  for  stone,  and  delivered  bills  of  particu- 
lars for  similar  quantities  of  stone  ;  on  the  first  trial  he  gave  no  evidence  as  to 
the  claim  for  stone,  but  recovered  as  to  the  rest ;  in  the  second,  he  had  a  verdict 
for  the  stone  taken  away,  and  it  was  held  by  the  Court  of  Exchequer,  on  a 
review  of  the  authorities,  that  the  trial  was  not  waived,  nor  the  action  barred, 
by  the  former  recovery :  Hadley  v.  Green,  2  Tyrr.  390.  But  if  a  plaintiff, 
having  several  causes  of  action,  offers  evidence  of  some  in  which  he  fails,  he 
cannot  afterwards  bring  another  action  for  those  causes  of  action  in  which  he 
has  failed:  Per  Best,  C.  J.,  in  Stafford  v.  Clarke,  2  Bing.  (9  E.  C.  L.  R.)  382; 
see  Hall  Y.  Stone,  1  Str.  515;  Markham  v.  Middleton,  2  Str.  1259;  Todd  v. 
Stewart,  9  Q.  B.  (58  E.  C.  L.  R.)  767.  And  if  a  defendant  plead  a  set-off, 
though  he  offers  no  evidence,  and  does  not  in  any  way  attempt  to  substantiate 
it,  he  will  be  estopped  by  a  verdict  on  the  plea  against  him  from  bringing  any 
action  for  the  recovery:  Eastmure  v.  Laws,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  444. 
So  if  a  plaintiff  sue  in  an  inferior  court  for  a  less  sum,  having  a  claim  for  a 
larger  sum,  or  having  a  demand  for  GOZ.,  consisting  of  three  sums  of  20Z.  con- 
sent at  Nisi  Prius  to  take  a  verdict  for  40Z.,  he  cannot  afterwards  bring  a  second 
action  for  the  residue :  Lord  Bagot  v.  Williams,  3  B.  &  C.  (10  E.  C.  L.  R.)  235; 
Bee  also  Boicden  v.  Home,  7  Bing.  (20  E.  C.  L.  R.)  716  ;  to  the  effect  that  a 
nolle  prosequi  as  to  part  of  a  sum  for  which  interlocutory  judgment  has  been 
obtained,  will  bar  any  action  for  that  part. 

*  Seddon  v.  Tutop,  G  T.  R.  607 ;  Marten  v.  Thornton,  4  Esp.  C.  180,  where  an 
arbitrator  was  examined  as  to  the  evidence  laid  before  him. 

'  A  judgment  upon  a  non-suit,  even  after  hearing  upon  the  merits  is  no  bar 
to  a  future  action  for  the  same  cause:  Bridge  et  al.  v.  Sumner,  1  Pick.  371  ; 
Morgan  et  al.  v.  Bliss,  2  Mass.  113  ;  Sed  vide,  Foster  v.  Atkinson,  1   Litt.  214. 


JUDGMENTS,    ETC. — IDENTITY    OF    TUE    FACT.  386 

It  is  not,  however,  necessary  that  the  fact  to  be  proved  by  the 
record  should  have  been  solely  and  specifically  put  in  issue  on  the 

A  discontinuance  of  one  action  is  no  bar  to  another  for  the  same  cause:  Hull  v. 
Blahe,  13  Mass.  155 ;  see  also  Sweigart  v.  Fre;/,  8  S.  &  R.  299.  It  is  only  where 
the  question  between  the  parties  has  been  once  decided  upon  confession  or 
verdict  that  the  judgment  is  a  bar  to  another  action  ;  and  not  where  the  party 
fails  by  reason  of  some  technical  defect :  Benton  v.  Cuffy,  Camp.  &  Nor.  98.  A 
recovery  in  a  former  action  apparently  for  the  same  cause  is  only  prima  facie 
evidence  that  the  demand  has  been  tried,  and  may  be  repelled  by  showing  that 
it  is  a  distinct  demand,  in  relation  to  which  no  testimony  was  offered  on  the 
trial  of  the  former  cause.  But  if  a  claim  is  submitted  to  a  jury  and  they  dis- 
allow it  or  allow  less  than  the  plaintiff  is  entitled  to  recover  or  overlook  part 
of  his  demands  a  verdict  and  judgment  thereon  are  a  conclusive  bar  to  a 
second  action  for  the  same  cause:  Phillips  v.  Berick,  16  Johns.  136;  Tnvin 
V.  Knox,  10  Johns.  365;  Brockicay  \.  Ken)ie.tj,  2  Johns.  210;  Plainer  v.  Best, 
11  Johns.  530;  Snider  et  al.  v.  Croi/,  2  Johns.  227;  Whittemore  v.  Whitte- 
viore,  2  N.  H.  28;  Ryer  v.  Attvater,  4  Day  431.  (It  is  however  necessary 
in  order  to  constitute  an  estoppel  by  a  former  judgment,  that  the  precise 
point  which  is  to  create  the  estoppel  should  have  been  put  in  issue  and  de- 
cided, and  this  must  appear  from  the  record  alone :  Smith  v.  Sherwood,  4 
Conn.  276. — I.)  It  is  said  by  Woodbury,  J.,  in  Whittemore  v.  Whittemore, 
uhi  supra,  that  the  presumption  that  the  demand  in  a  suit  is  in  fact  res 
adjitdicata  may  be  rebutted  in  all  cases  where  it  has  not  been  the  specific 
subject  of  a  former  action.  Where  evidence  which  is  offered  to  prove  one  of 
several  demands  is  rejected  by  the  judge,  and  the  plaintiff  suffers  a  verdict 
to  pass  on  the  whole  case,  the  judgment  on  that  verdict  is  a  bar  to  a  future 
action  on  the  demand  not  before  proved  :  Smith  v.  Whiting,  11  Mass.  Rep.  445. 
But  "  if  a  person  sues  upon  several  and  distinct  causes  of  action,  and  submits 
only  a  part  of  them  to  the  jury,  he  is  not  precluded  from  suing  again  for  such 
distinct  cause  of  action  as  was  not  passed  upon:"  Wheeler  y.  Van  Houten,  12 
Johns.  313.  If  the  plaintiff's  demand  consists  of  a  claim  indivisible  in  its 
nature,  the  defendant  cannot  be  vexed  by  having  the  claim  divided  into  separate 
suits  ;  and  a  judgment  in  a  suit  for  part  of  the  claim  is  a  bar  to  a  subsequent 
action  to  recover  the  remainder:  Smith  v.  Jones,  15  Johns.  229;  Farrington  et 
al.  V.  Payne,  15  Johns.  432.  In  Uess's  Exr.  v.  Heebie,  6  S.  &  R.  57,  a  former 
recovery  in  a  suit,  in  which  the  plaintiff  counted  for  an  entire  sum,,  was  held  to 
be  a  bar  to  another  suit  brought  on  the  same  contract,  to  recover  a  sum  included 
in  the  declaration  in  the  first  suit ;  and  the  plaintiff  was  not  permitted  to  show 
that  no  evidence  was  given  to  the  former  jury  in  support  of  the  claim  last  sued 
for  :  see  Lord  Bagot  v.  Williams,  3  Barn.  &  Cress.  235  ;  Ingruham  v.  Hall, 
11  S.  &  R.  78.  Where  the  payee  of  a  note,  on  which  payment  has  been  made, 
but  not  indorsed,  recovered  the  whole  sum  apparently  due  on  it,  upon  the 
maker's  becoming  defaulted,  the  judgment  was  held  in  Massachusetts  to  be  no 
bar  to  an  action  by  the  maker  to  recover  the  sum  before  paid  by  him :  Howe  v. 
Smith,  16  Mass.  306.  Aliter,  in  New  Hampshire,  1  N.  H.  33;  Tiltonw.  Gordon. 
So  where  judgment  was  obtained  by  default,  upon  an  account  annexed  to  the 
writ,  in  which  the  defendant  was  credited  for  certain  goods  ;  it  was  held  that 
the  judgment  was  no  bar  to  an  action  against  the  plaintiff  for  the  same  goods, 


336  JUDICIAL     DOCUMENTS. 

former  trial ;  it  is  sufficient  if  it  was  a  fact  essential  to  the  finding  of 
that  verdict.  A  verdict  against  a- division  of  a  parish,  for  not  repair- 
ing a  road,  is  afterwards  (in  the  absence  of  fraud)  conclusive  as  to  the 
obligation  to  repair,  although  the  verdict  also  involve  another  fact; 
viz.,  that  the  road  was  out  of  repair.^  So  a  verdict  in  an  action  for 
diverting  water  from  the  plaintiff's  mill,  is  evidence  in  a  subsequent 
action  for  a  similar  injury  at  a  subsequent  time,  as  to  the  right  to  the 
water. ^  In  such  case,  however,  the  record  would  operate  as  evidence 
only,  and  not  as  an  estoppel.^ 

f  R.  V.  St.  Fancras,  Peake's  C.  219 ;  2  Saund.  159  ;  2  Camp.  C.  494 ;  see  tit. 
Highway. 

8  Strutt  V.  Bovingdon  and  others^  5  Esp.  56,  although  other  defendants  be 
joined  in  the  second  action  to  the  sole  defendant  in  the  lirst,  but  who  justify 
under  that  defendant :  Ibid. 

"^  Lord  Ellenborough  said,  that  although  the  former  recovery  could  not  be 
deemed  to  be  a  legal  estoppel,  so  as  to  conclude  the  rights  of  the  parties  by  its 
production,  he  should  think  himself  bound  to  tell  the  jury  to  consider  it  as 
conclusive:  5  Esp.  C.  59. 

they  not  having  been  credited  by  him  at  their  full  value:  Minor  v.  Walter,  17 
Mass.  237.  But  where,  to  an  action  on  a  promissory  note  upon  which  partial 
payments  were  indorsed,  the  defendant  made  defence,  and  judgment  was  finally 
rendered  against  him  for  the  amount  appearing  to  be  due  after  deducting  the 
sums  indorsed  ;  it  was  held  to  be  a  bar  to  an  action  by  the  defendant  to  recover 
the  amount  of  other  payments,  alleged  to  have  been  made  on  the  note,  but  not 
indorsed  nor  allowed,  in  the  former  action  :  Loring  v.  Mansfield,  17  Mass.  394. 
A  plaintiff  who  had  brought  two  actions  upon  the  same  articles  of  agreement, 
i\i  one  of  which  he  had  recovered,  was  held  not  to  be  estopped  in  the  other 
action  in  which  he  had  declared  specially  on  the  contract,  from  proving  the  con- 
tract as  laid,  although  it  might  be  inconsistent  with  the  record  of  recovery  in 
the  other  action  :  Hess  v.  Heebie,  4  S.  &  11.  246.  So  when  there  has  been  a 
submission  of  all  demands,  and  an  award  thereon,  it  is  held  in  Massachusetts 
and  New  Hampshire  that  one  of  the  parties  may  maintain  an  action  upon  a 
particular  demand,  by  showing  that  it  was  not  laid  before  the  referees:  Webster 
V.  Lee,  5  Mass.  334 ;  Whittemore  v.  Whittemore,  2  N.  11.  26.  Aliter,  in  New 
York  ;  Wheeler  v.  Van  Houten,  12  Johns.  311.  The  court  in  New  York  took  a 
distinction  (somewhat  shadowy)  between  a  submission  of  "all  matters  in  dif- 
ference," as  in  the  cases  cited  in  the  text,  and  a  submission  of  "all  demands." 
So  in  the  case  of  Johnson  v.  Smith,  15  East  213,  Lord  Ellenborough,  "without 
deciding  against  the  authority  of  Goiightly  v.  Jcllicoe,"  held,  Grose  and  Bayley, 
Js.,  concurring,  where  parties  referred  "all  manner  of  actions  and  causes  of 
action"  to  arbitrators,  who  awarded  a  balance  to  be  paid  by  the  defendant  to 
the  plaintiff,  that  on  a  rule  for  an  attachment  for  not  performing  the  award,  the 
defendant  could  not  claim  a  deduction  of  a  certain  demand  due  to  him  from  the 
plaiiitiir,  on  the  ground  that  such  demand  was  no  part  of  the  dispute  between 
the  j)arties  and  had  not  been  submitted  to  nor  taken  into  the  consideration  of 
the  arbitrators.  M. 


ADJUDICATION    MUST     BE     DIRECT.  337 

It  is  not  necessary  that  the  former  verdict  should  *havebeen 
founded  upon  the  same  precise  subject-matter,  provided  the  ^  '  -' 
question  be  the  same,  and  bet^veen  the  same  parties.  It  is  laid  down 
that  "it  is  not  necessary  that  the  verdict  should  be  in  relation  to  the 
same  land,  for  the  verdict  is  only  set  up  to  prove  the  point  in  ques- 
tion ;  and  every  matter  is  evidence  that  amounts  to  a  proof  of  the 
point  in  question."'  If  the  question  be  the  same,  it  is  immaterial 
whether  the  parties  stand  in  the  same  relative  position  to  each  other  in 
the  second  action  as  in  the  first;  as  whether  the  plaintiff  in  the  first 
action  be  plaintiff,  or  defendant  in  the  second.*^ 

Where  the  same  party  sues,  or  is  sued,  in  a  different  capacity,  and 
in  a  different  right,  he  will  not  be  concluded  by  the  former  record. 
Thus,  if  a  party  sue  as  administrator,  and  fail,  he  will  not  be 
estopped  from  maintaining  an  action  against  the  same  defendant  as 
executor.'  So  if  one  claim  as  heir  to  his  father,  he  will  not  be  • 
estopped  from  afterwards  claiming  as  heir  to  his  mother.™ 

TliirdJy.  As  to  the  nature  and  manner  of  the  adjudication;  the 
judgment,  decree  or  sentence  must  be  direct  upon  the  precise  point, 
and  it  is  not  evidence  of  any  matter  Avhich  came  collaterally  in  ques- 
tion, although  it  was  within  the  jurisdiction  of  the  court,  nor  of  any 
matter  itixidentally  cognizable,  nor  of  any  matter  to  be  inferred  by 
argument  from  the  judgment,  as  having  constituted  one  of  the 
grounds  of  that  judgment."'  For  it  *is  obvious,  that  al-  rtqqo-i 
though    the    matter    e.xpressly   adjudicated  upon  is  certain, 

'  B.  N.  P.  232;  Shenvin  v.  Clarges  (1700)  12  Mod.  343.  It  seems,  however, 
that  in  such  a  case  the  verdict  would  not  be  conclusive.  In  Gilb.  Law  of  Ev. 
29,  the  case  is  put  as  one  of  persuading  evidence  to  a  jiJry.  And  see  Cleve  v. 
Powell,  supra.  So  in  equity,  on  a  bill  filed  to  have  a  bill  of  exchange  cancelled 
and  delivered  up,  upon  an  allegation  that  it  was  given  for  a  gambling  debt,  a 
verdict  for  the  plaintiff  in  equity  in  an  action  at  law  on  the  bill  brought  by  the 
defendant  in  equity,  is  admissible  evidence  :  Pearce  v.  Gray,  2  Y.  &  C,  Ch.  R.,  322. 

^  Mondel  v.  Steel,  8  M.  &  W.  858  ;  Easimure  v.  Laws,  5  Bing.  N.  C.  (35  E.  C. 
L.  R.)  444,  supra, 

'  Robinson^ s  case,  5  Rep.  32. 

°  Com.  Dig.,  Estoppel,  C. 

°  See  the  opinion  of  De  Grey,  C.  J.,  in  The  Duchess  of  Kingston''s  case,  20 
IIow.  St.  Tr.  355  ;  2  Smith's  L.  C.  425,  s.  c. :  Ilarg.  Law  Tracts  456 ;  2  Pothier, 
by  Evans,  357  ;  Lewick  v.  Lucas,  1  Esp.  C  43,  Action  on  the  case  for  unskil- 
fully varnishing  engravings :  the  defendant  proposed  to  give  in  evidence  the 
record  in  an  action  in  which  he  recovered  against  the  present  plaintiff  for  work 
and  labor,  and  to  show  by  parol  evidence  that  the  two  actions  related'  to  the 

'  If  it  do  not  appear  from  the  face  of  the  record  in  the  former  suit,  it  is  com- 
petent to  prove  by  parol  that  the  same  matter  did  arise  in  the  former  suit,  and 


338  JUDICIAL    DOCUMENTS. 

the  grounds  of  the  adjudication  are  often  uncertain ;  and  that  a  par- 
ticular ground  cannot  be  safely  inferred  and  relied  upon,  especially 
where  its  effect  is  to  be  conclusive.  To  permit  this  would  induce  the 
necessity  of  unravelling  the  materials  of  the  former  decision  ;  for  it 
would  be  manifestly  unjust  to  admit  a  presumption  that  a  particular 
fact  was  established  upon  the  former  inquiry,  and  yet  not  to  allow 
that  presumption  to  be  rebutted  by  proof  that  it  is  unfounded  In 
Blackharii  s  case°  which  was   an  action    of    trover,    the   defendant 

same  work.  Lord  Kenyon  rejected  the  evidence,  because  the  record  was  general ; 
and,  in  order  to  render  a  record  evidence  to  conclude  any  matter,  it  should  appear 
from  the  record  itself  that  that  matter  was  in  issue  ;  nor  should  evidence  be 
admitted  that  under  such  a  record  any  particular  matter  came  in  question.  The 
record  in  the  former  action  was  general  ;  and  to  inquire  whether  it  was  for  the 
work  done  in  varnishing  the  prints,  and  whether  the  defendant  in  that  action 
had  availed  himself  of  the  circumstance  of  their  being  unskilfully  done,  would 
be  to  try  that  same  case  again.  (But  see  as  to  this  Mondel  v.  Steel,  8  M.  &  W. 
858  ;  Bigge  v.  Burbridge,  15  M.  &  W.  598.)  In  some  instances,  however,  it  is 
necessary  to  show  by  parol  evidence  to  what  particular  subject-matter  a  record, 
general  in  its  terms,  was  applied  ;  as,  for  instance,  where  a  defendant  pleads  a 
recovery  by  the  plaintiff  in  a  former  action  for  the  same  subject-matter,  and 
where  issue  is  taken  on  the  question,  whether  the  former  verdict  embraced  the 
present  claim.  And  where  the  appellant  parish,  on  a  second  order,  shows  that 
the  former  order  was  quashed  upon  appeal,  the  respondents  may  show  that  it 
was  quashed  on  the  preliminary  objection  that  the  pauper  was  not  chargeable  : 
R.  V.  Wheelock,  5  B.  &  C.  (11  E.  C.  L.  R.)  511  ;  Vol.  II.,  tit.  Settlement  ;  and  see 
Beed  v.  Jackson,  1  East  355 ;  Bex  v.  Wick,  St.  Lawrence,  5  B.  &  Ad.  (27  E.  C. 
L.  R.)  526  ;  R.  V.  Knaptoft,  2  B.  &  C.  (9  E.  C.  L.  R.)  883 ;  Beg.  v.  Soiv,  4  Q.  B. 
(45  E.  C.  L.  R.)  93. 

0  1  Salk.  290;  3  Bro.  P.  C.  2d  ed.  595;  Ibid.  619.     See,  as  to  Blackham's 
case,  Bans  v.  Jackson,  1  Phil.  Ch.  Rep.  588. 

was  tried  upon  the  pleadings  in  the  record :  Burt  v.  Sternhainjh,  4  Cow.  559. 
Contra,  Camj^bell  v.  Butts,  3  Comst.  173.  Parol  proof  may  be  given  to  show  the 
grounds  on  which  a  former  judgment  proceeded,  when,  from  the  form  of  the 
issue  such  grounds  do  not  appear  by  the  record  itself;  provided  the  matters 
alleged  to  have  been  passed  upon  be  such  as  might  have  been  given  in  evidence 
under  the  issue  joined:  Briggs  v.  Wells,  12  Barb.  567;  Birckhead  v.  Brown,  5 
Sandf.  134  ;  Gray  v.  Gillilan,  15  111.  453  ;  Chamberlain  v.  GaiUard,  2  Ala.  504 ; 
Coleman's  Appeal,  12  P.  F.  Smith  252.  The  record  of  a  former  recovery  appa- 
rently for  the  same  cause  of  action  as  that  which  is  the  foundation  of  a  subse- 
quent suit  is  primd  facie  evidence  only  that  the  demand  had  been  once  tried, 
and  the  plaintiffs  may  repel  it  by  showing  that  it  was  a  distinct  demand,  in 
relation  to  wiiich  no  testimony  had  been  offered  on  the  trial  in  the  former  cause, 
and  that  it  arose  out  of  a  separate  and  unconnected  transaction:  Broion  v.  King, 
]()  Mo.  56.  Agreements  of  counsel  on  file,  and  the  testimony  of  the  judge  and 
jurors  who  tried  a  case  are  admissible  as  evidence  of  what  was  in  litigation  : 
Burr  v.   Woodrow,  1  Bush  602;  Kerr  v.  JIa>/s,  35  N.  Y.  331. 


ADJUDICATION     MUST     BE     DIRECT.  338 

proved  that  the  goods  were  Jane  Blackham  s  in  her  lifetime,  and 
that  he  *had  administered  to  her  eflTects.  The  plaintiff  r^poq-i 
proved  that  Jane  Blachham  was  married  to  him  a  few  days 
before  her  death.  The  defendant  contended  that  the  plaintiff  was 
concluded  by  the  letters  of  administration  granted  to  himself,  since 
the  letters  of  administration  must  have  been  founded  upon  the  pre- 
sumption that  there  was  no  such  marriage.  But  Holt,  C  J.,  said,  a 
matter  which  has  been  directly  determined  by  the  sentence  of  the 
proper  court,  cannot  be  gainsaid ;  their  sentence  is  conclusive  in  such 
cases,  and  no  evidence  shall  be  admitted  to  prove  the  contrary;  but 
that  is  to  be  intended  only  in  the  point  directly  tried ;  otherwise  it 
is,  if  a  collateral  matter  be  collected  or  inferred  from  their  sentence, 
as  in  this  case,  because  the  administration  is  granted  to  the  defend- 
ant; therefore,  they  infer  that  the  plaintiff  was  not  the  intestate's 
husband,  as  he  could  not  have  been  taken  to  be  if  the  point  there 
tried  had  been  married  or  unmarried,  and  their  sentence  had  been, 
not  married.  So,  although  it  was  once  held  that  the  production  of 
the  probate  by  a  prisoner  indicted  for  the  forging  of  a  will,  was  con- 
clusive evidence  for  him,P  the  contrary  has  since  been  frequently  ad- 
judged, and  is  now  settled  law.''  So  the  refusal  of  letters  of  admin- 
istration, on  the  ground  that  the  applicant  was  not  married  to  the 
deceased,  is  not  evidence  to  disprove  the  marriage  in  a  court  of  law.'" 
And  a  sentence  of  excommunication  against  the  father  and  mother 
for  fornication  is  not  evidence  to  disprove  the  legitimacy  of  the  son.^ 
Letters  of  administration  granted  to  the  plaintiff',  as  administrator  of 
the  goods  of  A.  B.,  are  not  evidence  of  the  death  of  A.  B^  So  on 
an  appeal  against  an  order  of  removal,  where  the  respondents  relied 
on  a  settlement  derived  from  *the  pauper's  father,  and  pro- 
posed  to  give  in  evidence  of  it  an  order  for  the  removal  of  •-  -' 
the  pauper's  brother  to  the  appellant  parish,  and  the  examination  on 
which  it  was  founded,  which  would  have  shown  that  the  brother's 
settlement  was  derived  from  the  father,  the  court  thought  the  Ses- 
sions had  properly  rejected  the  evidence  on  that  ground."  And 
Avhere,  in  an  action  on  a  bond,  the  defendant  pleaded  that  there  was  a 
usurious  agreement  between  him  and  the   plaintiff,  and  the  bond  was 

P  R.  V.  Vincent,  Str.  481  ;  R.  v.  Rhodes,  Ibid.  703. 

1  R.  V.  Sterling,  Leach  Ul  ;  R.  v.  Buttery  and  another,  R.  &  R.  C.  C.  342  ;  and 
R.  V.  Gibson,  Lancaster  1802,  cor.  Lord  Ellenborough  ;  2  Evans's  Pothier  356. 
■■  Rep.  term.  Hardwicke  12. 

°  Hilliard  v.  Phaley,  8  Mod.  180;  and  see  Robin's  case,  ante,  p.  325,  note  (e). 
'  Thompson  v.  Donaldson,  3  Esp.  C.  63. 
»  Reg.  V.  Soic,  4  Q.  B.  (45  E.  C.  L.  R.J  93. 
21 


340  JUDICIAL     DOCUMENTS. 

given  in  pursuance  thereof,  and  issue  was  joined  on  this  List  allega- 
tion, upon  which  the  defendant  had  a  verdict ;  it  was  held  in  another 
action  between  them  on  the  mortgage  deeds  given  at  the  same  time, 
that  the  plaintiff  was  not  estopped  from  denying  that  there  had  been 
a  usurious  agreement,  no  issue  having  been  taken  upon  that  precise 
point." 

It  seems,  also,  that  the  former  judgment  or  sentence  must  not  only 
be  direct,  but  also  final^  and  conclusive'^  in  the  court  of  which  it  is 
a  judgment;  for  if  it  do  not  decide  the  fact  there,  it  cannot  have  a 
greater  effect  in  any  other  coui't.''     Hence,  although  a  sentence  in  a 

^    nictitation  suit  *has  been  admitted  in   evidence  as  to  the  fact 

r*3411  •         • 

•-         -'of  marriage  in  a  temporal  court,  it  seems  in  principle  to  be 

wholly  inadmissible.''     And  it  has  been  held  that  proceedings  which 

would  not  constitute  an  estoppel,  are  not  prim d  facie  evidence  of  the 

^  Carter  v.  James,  13  M.  &  W.  137.  But  a  verdict  and  judgment  are  not  evi- 
dence of  immaterial  matter  involved  in  the  issue  :  Shearm  v.  Buriiard,  10  Ad. 
&  E.  (37  E.  C.  L.  R.)  593. 

y  Pitn  v.  Curell,  6  M.  &  W.  234.  Therefore,  neither  the  issue  nor  the  nisi 
prius  record  is  evidence,  where  no  judgment  has  been  had :  Holt  v.  Miers,  9  C. 
&  P.  (38  E.  C.  L.  R.)  191. 

^  See  the  judgment  of  C.  J.  De  Grey,  50  Hoav.  St.  Tr.  355. 

^  In  Doe  d.  Tatham  v.  Wright,  Lane.  Summer  Ass.  1836,  cor.  Coleridge,  J., 
the  question  was  as  to  the  capacity  of  M.  to  make  a  will :  the  defendant,  claim- 
ing under  a  supposed  will,  tendered  in  evidence  a  decree  in  equity  dismissing  a 
bill  filed  by  the  plaintiff's  lessor,  to  set  aside  the  will  on  the  ground  of  fraud, 
and  influence  exercised  by  the  defendant,  also  an  order  to  try  the  issue  devisavit 
vel  71011,  the  jiostea  and  verdict  finding  the  devisavit  with  a  view  to  establish  the 
fact  of  the  former  jury  having  so  found.  Coleridge,  J.,  on  a  subsequent  day, 
delivered  his  opinion,  that  though  the  decree  and  postea  were  admissible  evi- 
dence for  the  purpose  of  warranting  the  admission  of  the  evidence  given  on  the 
trial  of  the  former  issue  by  witnesses  since  deceased,  those  documents  were  in- 
admissible to  prove  the  former  verdict.  The  decree,  he  observed,  decides 
nothing ;  it  is  not  conclusive  :  the  question  is,  whether  the  verdict  be  admissible 
in  evidence;  as  matter  of  opinion  the  judgment  is  unnecessary  ;  but  it  is  not  con- 
tended that  it  is  unnecessary.  The  judgment,  however,  decides  nothing,  and 
therefore  the  verdict  on  which  it  is  founded  decides  notliing.  The  verdict  is 
not  severable  from  the  decree  as  a  matter  of  common  law  decision,  because 
there  is  no  power  of  reversing  the  judgment  at  common  law  ;  the  admission, 
therefore,  of  the  former  verdict  as  evidence,  would  tend  only  to  prejudice  the 
inquiry. 

The  defendant's  counsel  afterwards  insisted  that  as  the  ^^o.v/ca  was  evidence 
for  one  purpose  he  had  a  right  to  have  tlie  whole  read,  upon  which  Coleridge, 
J.,  thought  he  was  in  strictness  entitled  to  have  it  read,  and  it  was  read  accord- 
ingly. 

''  Sec   The  Duchess  of  Kiinjstoris  case,  20  How.  St.  Tr.  355. 


ADJUDICATION     MUST     BE     FINAL.  341 

fact."  A  colonial  judgment  cannot  be  pleaded  in  bar  of  an  action  in 
tbis  country,  unless  it  would  have  been  conclusive  in  the  colony,  al- 
though the  judgment  has  been  pronounced  by  a  court  of  error  in  the 
colony,  and  by  the  King  in  Council.**  Neither  will  a  foreign  judg- 
ment be  acted  upon  where  the  proceedings  are  imperfect. "^  A  decree 
in  a  foreign  court  of  equity  will  not  support  an  action  where  the 
amount  of  the  sum  due  is  left  indefinite.*^ 

Fourtldy  and  jiftldtj,  assuming,  then,  that  a  court  of  competent 
jurisdiction  has  adjudicated  directly  upon  a  particular  matter,  the 
next  question  is  as  to  the  application  and  effect  of  that  judgment  in 
proof  of  the  same  disputed  fact.  The  adjudication  is  offereil  to  prove 
either,  first,  *the  same  fact  for  the  same  purpose,  that  is,  ^  ,  ^^ 
where  the  same  matter  is  again  litigated'  in   a  court  of  con-    •-       "'-' 

"  Wright  V.  Doe  d.  Tutham,  1  Ad.  &  Ell.  (28  E.  C.  L.  R.)  17,  18. 

^  Plummer  v.  Woodburne,  4  B.  &  C.  (10  E.  C.  L.  R.)  625;  Smith  v.  Nicolls, 
5  Ring.  N.  C.  (35  E.  C.  L.  R.)  222. 

«  Obicini  v.  Bligh,  8  Biug.  (21  E.  C.  L.  R.)  351.  As  to  whether  a  foreign, 
colonial,  or  Irish  judgment  or  decree,  not  in  rem,  is  conclusive,  8ee  post. 

^  Sadler  v.  Robins,  1  Camp.  253  :  and  see  Henleij  v.  Super,  8  B.  &  C.  (15  E. 
C.  L.  R.)  20. 

s  A  judgment  bj  default  is  not  evidence  by  way  of  admission,  where  the  same 
cause  is  removed  to  a  higher  court.  Upon  the  removal,  by  habeas  corpus,  of  the 
cause  from  the  inferior  court,  the  defendant  having  suffered  judgment  by 
default,  it  was  held  that  it  was  not  receivable  in  evidence  against  him  as  an 
admission  of  a  cause  of  action  •,  upon  the  removal,  both  parties  were  to  be  con- 
sidered as  in  the  same  situation  as  if  no  such  judgment  had  been  given  :  Bot- 
tings  V.  Firby,  9  B.  &  C.  (17  E.  C.  L.  R.)  762.  See  Tidmus  v.  Lees,  5  C.  &  P. 
(24  E.  C.  L.  R.)  233,  where  Lord  Tenterden  received  such  evidence,  but  the 
plaintiff  was  afterwards  nonsuited.  So  a  verdict  on  a  former  trial  is  not  evi- 
dence on  a  new  trial :  Rogers  v.  Goddard,  2  Show.  255.  But  it  has  been  seen 
that  if  a  party  omit  to  plead  that  which  would  have  been  a  bar  to  the  former 
action,  he  cannot  plead  that  matter  to  an  action  on  the  judgment:  2\>dd  v. 
Maxjield,  6  B.  &  C.  (IS  E.  C.  L.  R.)  105 ;  and  see  above,  p.  324,  note  [z)  ;  Hen- 
derson V.  Henderson,  6  Q.  B.  (51  E.  C.  L.  R.)  288,  post,  p.  353.  After  a  com- 
plaint against  the  sheriff  by  motion,  and  special  relief  given,  an  action  is  not 
maintainable  against  him:  Cameron  v.  Reynolds,  Cowp.  403.  A  cessio  bonor%im 
in  Scotland  does  not  discharge  the  party  from  a  contract  in  England :  Phillips 
V.  Allan,  8  B.  &  C.  (15  E.  C.  L.  R.)  477.  Seciis,  if  the  plaintiff  be  entitled  to  a 
distributive  share  :  Ibid.  In  the  case  of  a  joint  and  several  obligation,  a  judg- 
ment and  execution  without  satisfaction  against  one  is  no  bar :  Lechmere  v. 
Fletcher,  1  Cr.  &  M.  623  ;  Brown  v.  Wooton,  Cro.  J.  73  ;  Com.  Dig.,  Action,  L. 
4.  Two  being  liable  on  a  contract,  the  Statute  of  Limitations  runs :  one 
promises  to  pay  his  proportion,  a  joint  action  is  brought  against  both,  a  vei'dict 
is  found  against  the  party  so  promising,  and  a  verdict  on  the  general  issue  for 
the  co-defendant ;  on  a  second  action  brought  against  the  former,  on  the  special 
promise,  the  verdict  and  judgment  for  the  co-defendant  are  no  bar:  Lechmere 
V.  Fletcher,  1  Cr.  &  M.  623. 


342  JUDICIAL     DOCUMENTS. 

current  jurisdiction  ;  or,  secondly,  to  prove  the  same  fact  for  a  differ- 
ent or  collateral  purpose.  In  the  first  case,  according  to  the  judg- 
ment of  C.  J.  De  Grey,  already  cited, "^  tlie  judgment  is  as  a  plea  a 
bar,  and  as  evidence  conclusive  between  the  same  parties.'  In  order, 
however,  to  make  such  a  judgment  operate  as  a  conclusive  bar  in  a 
civil  action  merely  as  an  estoppel,  it  is  necessary  to  plead  it  as 
*an  estoppel.''  If  a  part}'  will  not  rely  on  an  estoppel  Avhen 
L  J  he  may,  but  takes  issue  on  the  fact,  the  jury  will  not  be 
bound  by  the  estoppel,  for  they  are  to  find  the  truth  of  the  fact.' 
They  cannot  indeed  find  anything  against  that  which  the  parties  have 
affirmed  and  admitted  on  record,  although  such  admission  be  contrary 
to  the  truth  ;  but  in  other  cases,  though  the  parties  be  estopped  to  say 
the  truth,  the  jury  are  not,  as  in  Groddard's  case,"^  where,  in  an  action 
on  a  bond  to  a  deceased  intestate,  the  defendant  pleaded  the  death  of 
the  intestate  before  the  date  of  the  bond,  as  alleged  in  the  declara- 
tion, and  so  concluded  that  the  writing  Avas  not  his  deed  ;  on  which 
issue  was  joined,  and  it  was  held  that  the  jury  were  not  estopped  from 
finding  that  the  bond  was  executed  nine  months  before  it  bore  date, 
and  in  the  lifetime  of  the  intestate. 

In  an  action  on  the  case  for  diverting  water  from  the  plaintiff"'s  mill, 
the  defendant  gave  in  evidence  the  record  of  a  judgment  in  a  former 
action  between  the  same  parties  for  the  same  cause  of  action,  in  which 
the  defendant  had  pleaded  not  guilty,  and  obtained  a  verdict.  It  was 
contended,  both  at  the  trial  and  afterwards  in  banc,  that  the  plaintiff" 
r^oAA-i  ought  to  be  nonsuited:  but  it  was  held  that  it  *was  not  con- 
clusive, upon  the  plea  of  not  guilty,  although  it  would  have 

"  Vide  sujyra,  p.  323 ;  20  How.  St.  Tr.  355 ;  Hargr.  Law  Tracts  456 ;  2 
Pothier,  by  Evans,  357  ;  3  Wils.  304. 

i  B.  N.  P.  244 ;  Stra.  961 ;  4  Co.  44 ;  Cowp.  315  ;  8  T.  R.  620 ;  Burr.  1005. 

''  Com.  Dig.,  tit.  Estoppel,  A. ;  Outram  v.  Morewood,  3  East  354 ;  16  East  334. 
A  plaintiff  is  estopped  by  livery  of  seisin,  unless  he  show  by  the  deed  that  the 
delivery  was  conditional:  Co.  Litt.  225;  Litt.  363.  But  the  jury  are  not 
estopped  under  the  general  issue:  Co.  Litt.  226  ;  Litt.  366  ;  see  further  Vol.  IL, 
tit.  Record.  See  the  Digest,  De  Exceptione  Rei  Judicatae,  44;  tit.  1,  2.  The 
judgment  not  being  pleaded  is  not  conclusive,  although  the  form  of  action  was 
such  (ejectment)  that  the  defendant  had  no  election:  Doe  dem  Strode  v.  Seaton, 
2  C.  M.  &  R.  728.  But  see  2  Smith's  Lead.  Cas.  444 ;  Magrath  v.  Hardy,  4  Bing. ' 
N.  C.  (33  E.  C.  L.  R.)  782  ;  Dimes  v.  Grand  Junction  Canal  Co.,  9  Q.  B.  (58 
E.  C.  L.  R.)  517  ;  Freeman  v.  Couke,  2  Ex.  654. 

'  Vooght  V.  Winch,  2  B.  &  Aid.  662;  Bowman  v.  Rostron,  2  Ad.  &  E.  (29  E.  C. 
L.  R.)  295;  Trevivan  v.  Lawrence,  Sulk.  276;  Hannaford  v.  IJvnn,  2  Car.  &  P. 
(32  E.  C.  L.  R.)  148  ;  Magrath  v.  Hardy,  4  Bing.  N.  C.  (33  E.  C.  L.  R.)  782. 

"  2  Rep.  4  ;  B.  N.  P.  296.     See  jwst,  as  to  admissions  on  the  record. 


ADJUDICATION     MUST     BE    FINAL.  344 

been  so,  liad  it  been  pleaded  by  way  of  estoppel,  for  the  defendant 
had  elected  that  the  matter  should  be  considered  by  a  jury  upon 
evidence,  and  it  was  left  open  to  them  to  inquire  into  the  same  upon 
evidence,  and  to  give  their  verdict  upon  the  whole  of  the  evidence 
submitted  to  them.  And  the  case  of  Bird  v.  Randall,'^  where  Lord 
Mansfield  was  reported  to  have  said  that  a  former  recovery  need  not 
be  pleaded,  but  will  be  a  bar  when  given  in  evidence,  was  denied  ; 
and  it  was  said  that  the  judgment  in  a  former  action  for  the  same 
cause  did  not  necessarily  show  that  the  plaintiff  had  no  cause  of 
action.  If  the  matter  had  been  pleaded  it  would  have  operated  as  an 
estoppel ;  but  having  put  it  to  the  jury  to  find  what  the  fact  was,  it 
was  inconsistent  with  the  issue  which  the  defendant  had  joined,  to 
say  that  the  jury  were  estopped  from  going  into  the  inquiry.  He 
might,  however,  use  the  former  verdict  as  evidence,  and  pregnant 
evidence  to  guide  the  jury  who  were  to  try  the  second  cause  to  a 
verdict  in  his  favor ;  but  if,  notwithstanding  the  prior  verdict  and 
judgment,  the  jury  thought  the  case  was  with  the  plaintiff,  they  were 
not  estopped  from  finding  the  verdict  accordingly."^ 

"  3  Burr.  1345. 

°  Vooght  V.  Winch,  2  B.  &  Aid.  662.  Assuming  that  the  former  verdict  was 
founded  on  evidence  as  to  the  right,  it  is  exceedingly  difficult  to  say  what  degree 
of  weight  in  the  scale  is  to  be  attributed  by  the  latter  jury  to  the  opinion  of  the 
former,  without  the  means  of  knowing  the  reasons  which  led  them  to  that  deci- 
sion, or  how  far  they  are  to  distrust  their  own  judgment,  formed  on  grounds 
which  they  do  know,  in  order  to  embrace  that  formed  on  grounds  which  they 
do  not  know.  The  following  observations  are  taken  from  Douglas  on  Contested 
Elections :  "  It  Avill  be  remarked  that  the  evidence  of  a  former  vei'dict  is  gener- 
ally (except  where  it  is  directly  conclusive)  cautiously  to  be  received  by  a  jury 
who  are  to  decide  on  their  own  conscientious  conviction,  and  not  on  that  of  other 
men.  If  there  was  clear  and  full  proof  to  guide  the  opinion  of  a  former  jury, 
another  jury  will  be  satisfied  with  like  proof;  if  the  evidence  before  was  doubtful 
in  its  nature,  no  verdict  will  render  it  otherwise,  while  the  facts  remain  the 
same.  Perhaps  there  is  among  men  in  general  too  great  proneness  to  be  preju- 
diced in  matters  of  fact,  and  even  in  points  of  conscience,  by  the  notions  or 
determinations  of  others  who  may  have  been  antecedently  so  prejudiced  them- 
selves, instead  of  attending  to  their  most  solemn  duty,  when  called  by  the  nature 
of  the  subject  to  use  their  own.  On  the  whole,  though  tlie  verdict  of  one  jury 
may  be  evidence  to  another,  and  that  verdict  may  vary  in  its  real  force,  yet 
generally  it  seems  to  be  evidence  merely  admissible  ;  it  is  wisely  limited  by  the 
law  within  very  narrow  bounds.  In  proof  of  an  ancient  custom  it  is  very 
strong."  See  further  Vol.  II.,  tit.  Record.  In  an  action  for  mesne  profits,  the 
judgment  in  ejectment  is  not,  it  has  been  held,  conclusive  in  evidence:  Doe  v. 
Huddart,  3  C,  M.  &  R.  316 ;  see  Bowman  v.  Eostron,  2  Ad.  &  E.  (29  E.  C.  L. 
R.)  295. 

'  The  same  doctrine  is  held  in  Connecticut  and  Tennessee :  Church  v.  Leaven- 


345  JUDICIAL     DOCUMENTS. 

r*Qif;i  *^^  ^^^  cases,  however,  in  corisiilering  the  effect  of  the 
iudgment,  rejjard  must  be  had  to  the  extent  of  the  matter 
actually  decided  thereby.  A  conviction  of  inhabitants  of  a  parish 
upon  an  indictment  for  not  repairing  a  road  is  conclusive  of  their 
liability  to  repair  it ;  but  an  acquittal  will  not  establish  their  non- 
liability ;  for,  while  the  conviction  is  a  judgment  of  their  liability  to 
repair,  the  acquittal  merely  shows  that  they  were  not  proved  to  be 
then  liable  to  indictment.^  For  the  same  reason,  an  order  of  sessions 
confirming  an  order  of  removal  is  conclusive  proof  of  the  pauper's 
settlement  at  the  date  of  the  first  order  ;  but  such  an  order,  quash- 
ing an. order  of  removal,  merely  shows  that  when  the  latter  order 
was  made  the  appellant  parish  was  not  bound  to  receive  the'  pauper.'' 

It  seems  that  an  acquittal  on  an  information  in  rem  in  the  Ex- 
chequer, would  not  be  conclusive  upon  strangers  in  the  same  manner 
as  a  conviction  would  be."" 

The  above  general  rule,  that  a  judgment  by  a  court  of  competent 
jurisdiction  upon  the  same  matter,  between  the  same  parties,  and  for 
the  same  purpose,  is  conclusive,  appears  to  comprehend  not  only  all 
adjudications  by  the  courts  of  this  country,  whether  of  record  or  not, 
r*^in  ^^^  ^^^  *those  of  foreign  courts.^  It  has,  indeed,  been  sug- 
gested that  the  judgments  of  the  courts  in  this  country, 
which  are  not  of  record,  aftord  mere  prima  facie  evidence  of  the 
subject-matter  to  which  they  relate,  and  are  liable  to  be  controverted 
by  opposite  evidence.  This  position  does  not,  however,  seem  to  be 
warranted  by  any  decision,  or  to  be  tenable  upon  principle. 

The  question,  also,  whether  the  judgments  of  foreign  courts,  when 
actions    are    brought    upon    them    here,    are    conclusive,    or    merely 

P  R.  V.  St.  Pancras,  1  Pcake  220. 

0  E.  V.  Wick,  St.  Lawrence,  5.B.  &  Ad.  (27  E.  C.  L.  R.)  526  •,  5  B.  &  C.  (11  E. 
C.  L.  R.)  511. 

'  B.  N.  P.  245  ;  2  Ph.  Ev.  9th  ed.  38,  39  ;  s.  v.  per  Lord  Kenyon,  Cooke  v. 
Shall,  5  T.  R.  256. 

»  See  Sidaway  v.  Hay,  3  B.  &  C.  (10  E.  C.  L.  R.)  12,  where  it  was  held  that  a 
debt  contracted  in  England  was  discharged  under  a  sequestration  in  Scotland, 
issued  under  54  Geo.  III.  c.  137.  But  that  was  on  the  construction  of  the  par- 
ticular statute.  See  further,  Smith  v.  Buchanan,  1  East  6  ;  Potter  v.  Broivn,  5 
East  124  ;  Pedder  v.  McMaster,  8  T.  R.  609 ;  Quin  v.  Shea,  2  II.  B.  553 ;  Jeffery 
V.  McTaggart,  cited  3  B.  &  C.  (10  E.  C.  L.  R.)  22. 

worth,  4  Day  274 ;  Canaan  v.  Green  Woods  Turnpike,  1  Conn.  1  ;  Edwards  v. 
McConneU,  Cooke  305;  but  in  Virginia,  the  judgment,  in  such  case,  is  held  to 
be  conclusive:  Skelton  v.  Barbour,  2  Wash.  64;  Preston  v.  Harvey,  2  Hen.  & 
Munf.  55.  M. 


FOREIGN     JUDGMENTS,     WHEN     CONCLUSIVE.  346 

primd  facie  evidence  of  the  debt,  has  been  the  subject  of  considera- 
ble doubt,  but  the  former  position  seems  to  be  best  supported  both 
by  principle  and  analogy  to  decided  cases.''  That  the  evidence  in 
these  cases  is  merely  primd  facie,  is  a  position  wliich  rests  chiefly 
on  these  authorities  :  in  the  case  of  Walker  v.  Witter,''  which  was  an 
action  on  a  judgment  in  Jamaica,  in  Avhich  it  was  observed  in- 
cidentaUy'^  that  courts  not  of  record,  or  foreign  courts,  or  courts  in 
Wales,  have  not  the  privilege  of  not  having  their  judgments  con- 
troverted ;  the  case  of  Sinclair  v.  Frazer^  which  was  an  action  in 
Scotland  upon  a  judgment  in  Jamaica,  in  which  the  court  required 
evidence  of  the  original  debt,  and  in  which,  upon  appeal  to  the 
House  of  Lords,  it  was  resolved,  that  the  judgment  of  a  court  in 
Jamaica  ought  to  be  received  as  primd  facie  evidence  of  the  debt; 
also,  a  dictum  of  Eyre,  C.  J.,  in  giving  judgment  in  the  case  of 
Phillips  V.  Hunter,^  in  which  he  considered  foreign  judgments  as 
matters  '^in  pais  and  primd  facie  sufficient  to  raise  a  promise.  r*oi  y-i 
It  is  to  be  observed,  in  the  first  place,  that  these  authorities 
are  all,  with  a  view  to  this  question,  extra-judicial.  In  Walker  v. 
Witter,  and  Sinclair  v.  Frazer,  the  only  question  necessary  to  be 
determined  was,  whether,  on  proof  of  a  foreign  judgment  in  his 
favor,  the  plaintiff  was  entitled  to  recover  against  the  defendant, 
without  entering  into  the  original  consideration  on  which  the  judg- 
ment was  founded ;  and  the  question  how  far  such  evidence  was 
controvertible  did  not  arise ;  and  the  case  of  Phillips  v.  Hunter,  was 
decided  against  the  opinion  of  Eyre,  C.  J.,  by  the  three  other 
judges.  Secondly,  the  position  in  Walker  v.  Witter,  and  the  obser- 
vation of  Buller,  J.,  in  support  of  it,  in  a  subsequent  case,^  proceed 
upon  the  supposition  that  no  judgments  are  conclusive  except  those 
of  record  in  this  country  ;  and  that  the  judgment  of  a  foreign  court 
could  not  be  entitled  to  greater  credit  than  the  judgment  of  a  court 
not  of  record  in  this  country.  But  this  seems  to  be  doubtful,  at  the 
least.  In  the  case  of  Moses  v.  Macfarlane^  which  *has  been  ^ ,  ^  ,qt 
the  subject  of  strong  animadversion,  on  account  of  its  ten-    •-         ^ 

*  See  Martin  v.  Nicolls,  note  [r),  post,  p.  352;  and  cases,  ^05^,  p.  353. 
»  1  Doug.  1. 

'  See  Mr.  Evans's  observations,  2  Pothier,  by  Evans,  349. 
y  Cited  1  Doug.  5.  *  2  11.  B.  402. 

*  Galbraith  v.  Neville,  1  Doug.  R.  6,  n.  2 ;  and  5  East  475. 

''  2  Burr.  1005.     Macfarlane  sued  Moses  in  the  Court  of  Conscience,  as  the 

^  See  BisseJl  v.  Briggs,  9  Mass.  462 ;  Buttrick  v.  Allen,  8  Id.  273  ;  Winchester 
V.  Evans,  Cooke  420 ;  Kelly  v.  Hooper's  Ex'rs.,  3  Yerg.  395.  G. 


348  JUDICIAL     DOCUMENTS. 

dency  to  unsettle  foundations,"  the  court  fully  admitted  the  general 
doctrine,  that  the  judgment  of  a  competent  tribunal  could  not  be 
overhauled  in  an  original  suit;  and  although  the  judgment,  which 
"was  there  insisted  upon  as  final,  Avas  one  by  the  commissioners  in 
a  court  of  conscience,  it  was  never  contended  that  it  was  not  equally 
conclusive  with  the  judgment  of  a  court  of  record.  So  in  Moody  v. 
Thurston,^  under  an  Act  for  stating  the  debts  of  the  army,  the  com- 
missioners had  power  to  call  the  officers  and  agents  before  them,  and 
in  case  they  found  money  due  from  one  to  the  other,  to  give  a  cer- 
tificate upon  which  an  action  might  be  brought,  as  upon  a  stated 
account ;  in  an  action  for  money  so  due,  the  plaintiff  produced  his 
certificate ;  the  defendant  tendered  his  accounts,  offering  to  show 
that  no  money  was  due;  and  he  complained  that  the  commissioners 
had  refused  to  hear  him,  and  made  their  certificate  upon  the  first  sum- 
mons, Avithout  giving  him  time  to  produce  his  accounts :  but  the 
Chief  Justice,  upon  the  trial,  and  the  whole  court  afterwards,  were 
of  opinion  that  the  certificate  was  conclusive.  So,  the  allowance  of 
a  debt  by  the  Commissioners  of  Bankrupts  is  conclusive  evidence.^ 
It  is  true  that  in  the  case  of  Henshaw  v.  Pleasance,^  it  was   doubted 

indorser  of  a  small  bill  of  exchange,  and  recovered  against  him,  in  breach  of  an 
agreement  in  writing  between  them  (which  the  commissioners  of  the  court  re- 
fused to  notice),  that  Moses  should  not  be  liable  nor  prejudiced  by  reason  of  his 
indorsement.  Moses  paid  the  money,  and  brought  an  action  in  the  King's 
Bench  to  recover  it  back,  as  money  had  and  received  to  his  use,  and  did  re- 
cover it.  The  principal  question  was,  whether  money  thus  paid  according  to 
the  sentence  of  the  court  could  be  recovered  in  opposition  to  that  sentence,  as 
money  had  and  received  to  the  plaintiff's  use  ;  and  whether  he  ought  not  to 
have  declared  for  breach  of  the  special  agreement.  It  was  held  that  the  plain- 
tiff was  entitled  to  recover,  for  that  the  commissioners  had  properly  refused  to 
take  notice  of  the  agreement  in  bar  of  the  suit;  and,  therefore,  that  the  per- 
mitting the  plaintiff  to  recover  money  so  paid,  was  no  impeachment  of  their 
decision;  and  as  it  was  money  which,  under  all  the  circumstances,  was  justly 
due  to  the  plaintiff,  it  might  be  recovered  in  that  form  of  action.  This  decision 
has  created  great  dissatisfaction,  and  the  objections  to  it  were  stated  with  great 
force  and  perspicuity  by  Lord  C.  J.  Eyre,  in  giving  his  opinion  in  Phillips  v. 
Hunter^  2  II.  B.  402,  who  observed,  that  it  was  beyond  liis  comprehension  how 
the  same  judgment  could  create  a  duty  for  the  recoveror,  upon  which  he  might 
have  debt,  and  a  duty  against  him  upon  which  money  had  and  received  would 
lie :  see  2  Smith's  L.  C.  238. 

"  See  the  observations  of  Eyre,  C.  J.,  in  Phillijjs  v.  Hunter,  2  H.  Bla.  402; 
see  also  Jirown  v.  McKiimalli/,  1  Esp.  C.  279;  Marriott  v.  Hampton j  7  T.  R. 
20'J;  C,  Smith's  L.  C.  237;  2  Pothier,  by  Evans,  350;  ])e  Medina  v.  Grove,  10  Q. 
B.  ('J<J  E.  C.  L.  It.)  152. 

"^  Str.  4SI.  <>  Brown  v.  Bullcn,  1  Doug.  407. 

'2  W.  i;i.  1174. 


FOREIGN    JUDGMENTS,     WHEN    CONCLUSIVE.  348 

"whether  a  condemnation  by  commissioners  of  excise  was  conclusive 
evidence  in  justification  of  the  officer  who  seized  the  goods,  because 
it  was  not  a  judgment  of  a  court  of  record.  But  *in  the  case  rtoAqi 
of  lloherts  V.  Fortune,^  it  was  held  by  Lee,  C.  J.,  that  such 
an  adjudication,  although  not  of  record,  was  final.  So,  the  judgments 
of  the  Ecclesiastical  Courts'*  and  Admiralty  Courts,'  although  not  of 
record,  are  frequently  conclusive.''  So,  the  decision  of  a  private  arbi- 
trator, to  whom  the  parties  have  referred  themselves,  is  binding 
upon  the  subject-matter.'  These  are  instances  in  which  the  adjudi- 
cation, though  not  of  record,  is  final.  A  matter  is  not  less  res  adju- 
dicata  because  it  is  not  of  record,  that  is,  because  it  is  not  preserved 
and  authenticated  in  a  particular  manner  ;  and  when  it  has  been  es- 
tablished as  a  legal  judgment  by  a  court  of  competent  jurisdiction,  it 
seems  to  be   equally  entitled  to  consideration.™     The  principle    on 

«  1  Hargr.  Law  Tracts  446.  "  Da  Costa  v.  Villa  Real,  Str.  961. 

'  Post  Admiralty  Decisions. 

^  In  the  case  of  Gahan  v.  Maingay,  cited  2  Evans's  Pothier,  p.  353,  the  Lord 
Chancellor  (of  Ireland)  observed  that  the  Ecclesiastical  and  Admiralty  Courts 
are  not  courts  of  record,  and  that,  sitting  in  a  court  of  law,  he  was  not  at  liberty 
to  enter  into  the  examination  of  the  justice  or  injustice  of  any  judgment  of  a 
court  of  competent  jurisdiction,  unless  it  came  before  him  by  a  writ  of  error. 

'  Doe  V.  Eosser,  3  East  11  ;  Barrett  v.  Wilson,  1  C,  M.  &  R.  586  ;  Johnson  v. 
Durant,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  930 ;  Jupp  v.  Grayson,  1  C,  M.  &  R.  523. 

^  Stockdale  v.  Eansard,  9  Ad.  &  E.  (36  E.  C.  L.  R.)  62,  et  seq.  It  will  be  seen 
that  decisions  by  justices  of  the  peace  by  virtue  of  a  summary  jurisdiction  are 
conclusive  on  an  action  brought,  and  that  the  propriety  of  such  decisions  cannot 
be  questioned.  See  Vol.  II.,  tit.  Justices.  In  the  case  of  Guinness  v.  Carroll, 
1  B.  &  Ad.  (20  E.  C.  L.  R.)  459,  an  action  having  been  brought  upon  an  Irish 
judgment,  the  attempt  was  made  to  unravel  the  former  proceedings,  but  the 
case  was  decided  on  a  collateral  ground.  It  is  observable,  however,  that  on  the 
case  of  Buchanan  v.  Rucker,  9  East  192,  being  cited  as  an  authority  to  warrant 
such  inquiry,  Lord  Tenterden  observed,  that  in  that  case  the  proceedings  showed 
that  judgment  had  been  given  bj'^  default  upon  summonses  not  personally 
served,  where  it  did  not  appear  that  the  defendant  ever  had  been  summoned. 
The  cases  o^  Arnott  v.  Reclfern,  3  Bing.  (11  E.  C.  L.  R.)  353,  and  of  Dottglas  v. 
Forrest,  4  Bing.  (13  E.  C.  L.  R.)  686,  were  also  cited  on  the  same  side.  But  in 
the  former,  Best,  C.  -J.,  in  giving  judgment,  observed  that  it  was  not  necessary 
to  consider  whether  the  judgment  (of  a  Scottish  court)  could  be  impeached 
here  ;  and  in  the  latter,  the  question  was,  not  whether  the  former  judgment 
could  be  examined  into  with  a  view  to  the  merits,  but  only  whether  the  process 
of  the  Scotch  court,  in  which  the  judgment  had  been  pronounced,  was  sufficient 
to  make  the  judgment  binding  on  the  defendant.  In  the  case  of  Barnes  v. 
WincJder,  2  C.  &  P.  (12  E.  C.  L.  R.)  345,  the  plaintiflF  having  sued  for  his  debt 
in  the  county  court,  and  the  plaint  having  been  dismissed  on  the  merits,  it  was 
held  that  he  might  still  sue  in  a  superior  court  for  the  same  demand  ;  that  the 
former  proceedings  would  not  be  conclusive  against  him,  but  were  for  the  con- 


350  JUDICIAL     DOCUMENTS. 

porn-i  *wbich  the  conclusive  quality  of  judgments,  decrees  or  sen- 
tences depends,  applies  just  as  much  to  forei<j;n  judgments 
attempted  to  be  enforced  here,  as  to  any  other.  Judgments  of  in- 
ferior courts  in  this  country,  do  not  differ  in  that  respect  from  re- 
corded judgments ;  and  if  the  mere  circumstance  of  their  being 
foreign  made  any  difference,  the  objection  would  equally  apply  to  all 
foreign  judgments,  and  consequently  the  sentences  of  foreign  courts 
of  Admiralty  would  not  be,  as  they  are,  conclusive  here.  The  prin- 
ciple upon  which  a  judgment  is  admissible  at  all  is,  that  the  point 
has  already  been  decided  in  a  suit  between  parties  or  their  privies, 
by  some  competent  authority,  which  renders  future  litigation  useless 
and  vexatious.  If  this  principle  extends  to  foreign  as  Avell  as  domes- 
tic judgments,  as  it  plainly  does,  why  is  it  to  be  less  operative  in  the 
former  than  in  the  latter  case  ?  If  it  does  not  embrace  foreign 
judgments,  how  can  they  be  evidence  at  all?  By  admitting  that 
such  judgments  are  evidence  at  all,  the  application  of  the  principle 
is  conceded.  Why,  then,  is  its  operation  to  be  limited,  as  if  the  for- 
eign tribunal  had  heard  nothing  more  than  ex  parte  statement  and 
proof?  Lord  C.  J.  Eyre  lays  stress  on  the  circumstance,  that  the 
judgment  is  voluntarily  submitted  by  the  party  who  claims  the  benefit 
of  it,  to  the  jurisdiction  of  the  court ;  but  so  it  is  in  every  case  where 
a  party  claims  the  benefit  of  such  a  judgment ;  for  no  one  is 
compelled  to  avail  himself  of  a  judgment ;  and  it  can  make  no 
p^or-j-i  difference  whether  he  attempts  *to  enforce  it  as  plaintiff,  or 
as  matter  of  defence ;  for  it  could  scarcely  be  contended 
that  a  judgment  was  merely  primd  facie  evidence  for  a  plaintiff  who 
endeavored  to  recover  the  debt,  but  that  it  was  conclusive  in  his 
favor  Avhen  he  used  it  by  way  of  set-off.  In  the  case  of  Galhraith  v. 
Neville,  Lord  Kenyon  expressed  strong  doubts  as  to  the  doctrine  ad- 
vanced in  Walker  v.  Witter ;  and  it  appears  that  ultimately"  the 
court  refused  a  new  trial,  being  of  opinion  that  the  judgment  was  at 
all  events  ^:>rm^  facie  evidence  of  debt,  without  entering  into  the 
question  how  far  it  Avas  impeachable.  In  Houlditch  v.  3Iarqids  of 
Donegal^"  where  the  creditors  of  a  person  resident  in  Ireland,  filed  a 
bill  in  the  English  Court  of  Chancery,  and  obtained  a  decree  for  an 
account,  &c.,  and  afterwards  (the  property  of  the  debtor  lying  chiefly 

sidcratioii  of  the  jury,  as  somcthinj^  ini<fht  have  occurred  in  the  county  court 
which  was  not  hrou^ht  Ijofore  the  jury  in  the  second  action.  But  see  the  case 
of  Huxham  v.  Smilh,  2  Camp.  1*J,  infra,  359. 

"  5  East  475,  n. 

°  2  CI.  &  Tin.  470. 


FOREIGN    JUDGMENTS,     WHEN     CONCLUSIVE.  351 

in  Ireland)  filed  a  bill  in  the  Court  of  Chancery  there,  praying  to 
have  the  full  benefit  of  the  proceedings  in  the  English  suit,  the  Court 
of  Chancery  in  Ireland  having  dismissed  such  bill  as  for  want  of 
jurisdiction  :  it  was  held,  upon  an  appeal  to  the  House  of  Lords,  that 
the  judgment  of  the  Court  of  Chancery  in  Ireland  was  erroneous, 
that  the  proceedings  in  the  English  Court  of  Chancery  were  in 
the  nature  of  a  foreign  judgment,  and  were  to  be  treated  as  such  in 
Ireland,  namely,  as  primd  facie  evidence  of  right  in  the  party  who 
had  obtained  the  judgment,  and  therefore  to  be  enforced  by  the 
court  there.  It  will  be  observed  that  in  this  case  the  question  was, 
not  whether  the  judgment  in  the  English  Court  was  conclusive,  or 
only  'primd  facie  evidence,  but  whether  the  Irish  Court  had  any 
jurisdiction  in  the  matter  at  all.  Hence  it  can  hardly  be  considered 
as  an  authority,  that  foreign  judgments  are  merely  primd  facie 
evidence,  and  not  conclusive  as  to  the  matters  decided  by  them. 

Upon  an  action  of  covenant,P  for  not  indemnifying  *the  r*qr9-i 
plaintiff  against  partnership  debts  due  from  a  dissolved  firm, 
in  which  the  plaintiff  and  defendant  were  partners,  the  plaintiff 
proved  a  decree  in  the  Court  of  Grenada  against  himself  and  the 
defendant,  for  a  partnership  debt,  on  which  a  sequestration  issued 
against  the  plaintifl"s  property,  by  which  he  was  compelled  to  pay 
the  debt.  Upon  the  trial  the  defendant  offered  to  prove  that  the 
account  had  been  incorrectly  taken  ;  but  Lord  Ellenborough  rejected 
the  evidence,  on  the  ground  that  the  foreign  court,  being  a  court  of 
competent  jurisdiction,  must  betaken  to  have  decided  rightly  ;  and 
the  Court  of  King's  Bench  afterwards  refused  a  rule  7iisi  for  a  new 
trial.  The  case  of  Burrows  v.  Jemino'^  is  direct  to  show  that  foreign 
judgments  are  conclusive.  In  that  case  the  acceptor  of  a  bill  resid- 
ing at  Leghorn,  having  been  discharged  of  his  acceptance,  according 
to  the  laws  there,  by  the  failure  of  the  drawer,  instituted  a  suit  there, 
and  had  his  acceptance  vacated  by  a  decree  of  the  court ;  and  being 
afterwards  sued  in  England  upon  the  same  bill,  he  applied  to  the 
Court  of  Chancery  for  an  injunction,  which  was  granted  on  the  broad 

P  Tarleton  v.  Tarldon,  4  M.  &  S.  20.     See  Malony  v.  Gibbons,  2  Cam.  502. 

'i  Str.  733.  In  the  case  of  Pltimnier  v.  Woodburne,  4  B.  &  C.  (10  E.  C.  L.  R.) 
625,  it  was  held  that  a  plea  alleging  a  judgment  in  a  colonial  court  for  the  same 
cause  of  action,  Avas  a  bad  plea,  for  not  showing  that  such  a  judgment  would 
have  been  conclusive  in  the  colony  :  but  it  seems  to  have  been  assumed  that  the 
judgment,  if  shown  to  be  conclusive  in  the  colony,  would  also  be  conclusive 
here. 


352  JUDICIAL     DOCUMENTS. 

ground  that  the  sentence  of   a    court    of   competent   jurisdiction   is 
conclusive.^ 

r*3531        ^^  *^®  ™°^^  recent  case  of  Martin  v.  Nieholls,^  a  bill  *for 
a  discovery  and  commission  to  examine  witnesses  in  Antigua, 

"■  3  Sim.  458.     This  decision  has  been  confirmed  in  the  House  of  Lords  in 


^  Before  the  ratification  of  the  confederation  of  the  United  States  all  the  courts 
of  the  several  provinces,  colonies  or  States  vrere  at  common  law  deemed  to  be 
foreio;n  to  each  other  ;  and  jud laments  rendered  by  any  one  of  them  were  con- 
sidered by  the  others  as  foreign  judgments.  Per  Parsons,  C.  J.,  9  Mass.  464, 
465.  By  that  ratification  the  several  States  agreed  that  full  faith  and  credit 
should  be  given,  in  each  of  the  States,  to  the  records,  acts  and  judicial  proceed- 
ings of  the  courts  and  magistrates  of  every  other  State.  Afterwards  a  similar 
provision  was  made  in  the  Constitution  of  the  United  States.  It  seems  to  have 
been  the  intention  of  the  government  of  the  United  States  to  place  judgment  re- 
covered in  any  of  the  State  courts,  on  better  ground  than  judgments  rendered 
in  any  other  country.  On  any  other  supposition,  the  first  section  of  the  fourth 
article  of  the  Constitution  would  seem  to  be  utterly  illusory  and  useless  :  7 
Cranch  485  ;  Peters  C.  C.  78  ;  9  Mass.  466  ;  Hardin  413.  It  must  therefore  have 
been  the  understanding  of  the  framers  of  the  confederation  and  of  the  Constitu- 
tion, that  when  a  party  to  a  foreign  judgment  sought  to  enforce  it  by  action  in 
the  American  courts  (for  in  such  case  only  are  the  merits  of  a  foreign  judg- 
ment ever  re-examined,  3  Johns.  169,  per  Kent,  C.  J.),  it  was  not  conclusive 
evidence ;  and  that  the  defendant  might  impeach  it.  And  since  the  organiza- 
tion of  the  federal  government  under  the  Constitution  these  courts  seem 
uniformly  to  have  had  the  same  understanding  of  the  law.  No  case  has  been 
found  in  which  this  point  has  been  directly  adjudicated  ;  but  it  is  asserted  or 
assumed  in  the  cases  above  referred  to,  and  in  the  following  among  many 
others,  viz. :  Buttrich  et  ux.  v.  Allen,  8  Mass.  274  ;  Taijlor  v.  Briden,  8  Johns. 
173  ;  Hitchcock  et  al.  v.  Aicken,  1  Caines  460  ;  King  v.  Van  Gilder,  1  Chip.  59  ; 
Curtis  V.  Gibbs,  1  Penna.  400 ;  Winchester  v.  Evans,  Cooke  429. 

The  construction  of  the  above-mentioned  clause  in  the  Constitution  of  the 
United  States,  in  connection  with  the  statute  of  1790,  has  heretofore  been  contra- 
dictory in  the  diS'erent  States;  but  whenever  a  judgment  of  one  State  court, 
•when  sued  in  that  of  another,  has  been  held  to  be  only  prima  facie  evidence,  it 
has  been  on  the  ground  that  such  judgment  is  to  be  regarded  as  foreign.  It 
may  therefore  probably  be  afiirmed  with  safety,  that  in  the  United  States,  a 
foreign  judgment  in  contradistinction  to  a  judgment  of  a  sister  State  is  not  re- 
garded as  conclusive,  but  that  the  defendant  is  entitled  to  the  same  defence  as 
in  the  original  cause. 

Since  the  decision  in  Mills  v.  Duryee,  7  Cranch  481,  and  Hampton  v.  McCon- 
nel,  3  Wheat.  234,  it  must  be  considered  as  settled  definitely,  that  a  judgment 
of  one  State  has  the  same  validity  and  eff"ect  in  another  as  in  the  State  where  it 
was  rendered  ;  and  that  in  an  action  to  enforce  it,  no  ])loa  is  allowable,  which, 
in  a  similar  action,  would  be  rejected  in  the  latter  State.  Whether  fraud, 
want  of  jurisdiction,  &c.,  may  be  pleaded  to  such  judgment,  is  still  an  open 
question  in  the  Supreme  Court  of  the  United  States:  3  Wheat.  23  note;  15 
Johns.  144.  But  it  has  been  decided  affirmatively  in  numerous  cases  in  the 
State  courts :  Mitchell  v.  Osgood,  4  Grccnl.  124  ;  sec  next  note.  M. 


FOREIGN    JUDGMENTS,     WHEN     CONCLUSIVE.  353 

in  aid  of  the  plaintiff's  defence  to  an  action  brought  on  a  foreign 
judgment  in  this  country,  was  held  demurrable,  on  the  broad  prin- 
ciple that  the  grounds  of  a  foreign  judgment  cannot  be  reconsidered 
in  the  courts  of  this  country/  In  Henderson  v.  Henderson,^  which 
was  an  action  on  a  decree  of  the  Supreme  Court  of  Newfoundland, 
pleas  alleging  that  the  plaintiff  there  sued  as  widoAV  of  //.  in  right 
of  H.,  Avithout  showing  any  right  of  representation  to  him ;  and 
also  a  set-off  from  H.  or  his  estate  due  to  defendant,  were  held  bad, 
on  the  ground  that  these  matters  would  have  constituted  a  defence 
in  the  colonial  court,  and  whatever  constituted  such  defence  ought 
there  to  have  been  relied  on  :  that  in  Smith  v.  NicoUs  no  opinion 
was  intimated  that  the  question  decided  by  the  colonial  court  was 
open  to  examination  in  an  action  on  its  judgment  here  ;  circum- 
stances might  indeed  exist  which  would  render  it  inequitable  to 
claim  the  sum  decreed,  but  the  remedy  for  that  was  by  application 
to  the  Court  of  Chancery.  And  so,  in  The  Bank  of  Australasia  v. 
I^ias"  which  was  an  action  on  a  judgment  obtained  in  New  South 
AVales,  the  court  held  that  whatever  might  have  been  pleaded  to  the 
original  action  could  not  be  pleaded  here.  That  how  far  it  would 
be  permitted  to  a  defendant  to  impeach  the  competency  or  integrity 

of  a  ^foreign  court,  from  which  there  was   no  appeal,  it  was    ^ 

.       .  11'  r*3541 

unnecessary   to  inquire,  for  here  there  was  an   appeal,  and    ^  J 

Ricardo  v.  Garcias,  12  CI.  &  F.  368,  where  to  a  bill  in  Chancery,  seeking  an 
account  respecting  a  loan  transaction,  a  plea  that  the  plaintiff  impleaded  some 
of  the  defendants  before  the  French  tribunals,  which  gave  judgment  for  them, 
and  that  the  matters  so  adjudicated  upon  were  the  same  as  those  put  in  issue 
by  the  bill,  was  held  upon  demurrer  to  be  a  good  answer;  and  Lord  Campbell 
said,  '"I  was  clearly  of  opinion  that  a  foreign  judgment  might  be  pleaded  as  res 
judicata^  because  the  foreign  tribunal  has  clearly  jurisdiction  over  the  matter, 
and  both  parties  having  been  regularly  brought  before  the  foreign  tribunal, 
and  that  tribunal  having  adjudged  between  them,  I  think  that  such  a  judgment 
would  be  a  bar  to  a  subsequent  suit  in  this  country  for  the  same  cause." 

^  In  Smith  V.  Nicolls,  5  Bing.  N.  C  (35  E.  C.  L.  R.)  220,  Martin  v.  Nicolls 
having  been  cited,  among  other  authorities,  in  argument,  Tindal,  C.  J.,  ob- 
served :  "  Greut  doubts  formerly  existed,  and  some  degree  of  doubt  still  exists, 
whether  a  judgment  so  recovered  is  conclusive  between  the  parties,  or  whether 
the  matter  may  be  opened  and  agitated  in  this  country."  In  that  case  the 
court  held  that  the  original  cause  of  action  (trover)  was  not  merged  by  the 
judgment  of  the  Court  of  Sierra  Leone  ;  and  see  the  observations  in  Houlditch 
V.  Marquis  of  Donigal,  2  CI.  &  F.  470. 

'  6  Q.  B.  (51  E.  C.  L.  R.)  288.  And  see  Ferguson  v.  Mahon,  11  Ad.  &  E.  (39 
E.  C.  L.  R.)  179. 

"  20  L.  J.,  Q.  B.  284. 


351  JUDICIAL     DOCUMENTS. 

that  "was  the  proper  mode  of  setting  aside  an  erroneous  judgment, 
and  not  by  re-trying  the  cause  and  submitting  the  same  questions  to 
a  jury. 

Hence  it  would  seem  that  the  decisions  of  foreign  courts,  which 
being  apparently  regular,  and  pronounced  on  matters  within  the  scope 
of  their  jurisdiction,  are  conclusive  abroad,  are  also  conclusive  in  this 
country  ;  and  the  court  here  will  presume  that  the  foreign  court  had 
jurisdiction,"^  and  that  its  proceedings  were  regular.''  In  some  in- 
stances a  foreign  iudorment  is  sought  to  be  taken  advantage  of  as  a 
defence  '/  if  intended  to  be  relied  on  as  an  estoppel,  it  must  be  pleaded 
as  such  f  for  should  it  merely  be  given  in  evidence,  it  will  not  be  con- 
clusive, however  cogent. 

AVhere,  however,  a  foreign  judgment  has  proceeded  upon  some  error 
apparent  on  the  face  of  the  judgment,  it  is  impeachable  on  that  ground. 
In  the  case  of  Novelli  v.  Mossi,^  the  defendant,  in  answer  to  proof  of 
a  debt  due  by  him  to  the  plaintiff,  showed  that  he  had  indorsed  two 
bills  to  the  plaintiff,  of  which  the  defendant  himself  was  also  the  in- 
dorsee ;  that  the  acceptance  on  these  bills  had,  on  presentment  for 
payment,  been  cancelled  by  the  banker's  clerk,  who  immediately  wrote 
opposite  to  them,  "  cancelled  by  mistake;"  that  the  plaintiff  after- 
wards took  up  the  bills,  and  returned  them  regularly  protested  to  the 
defendant,  who  applied,  without  success,  to  the  prior  parties  for  pay- 
ment ;  that  a  suit  having  been  instituted  by  him  in  a  French  court, 
r*or'--i  the  court,  and  afterwards  a  court  to  *which  the  plaintiff  had 
appealed,  adjudged  that  the  defendant  was  discharged  from 
the  bills,  on  the  ground  that  the  cancelling  of  the  bills  operated  as  a 
suspension  of  the  legal  remedies  against  the  acceptor,  and  was  equiv- 
alent to  a  delay  granted  to  him  by  tlie  holder,  with  whom  the  plaintiff 
was  indentificd.  It  was  contended  that  this  decree  was  conclusive, 
but  the  court  held,  that  as  it  appeared  that  the  French  courts  had 
mistaken  the  law  of  England  as  to  the  effect  of  the  cancellation,''  the 
defendant  was  still  liable.     The  courts  of  England  will  not,  however, 

"  Robertson  v.  Sirufh,  5  Q.  B.  (48  E.  C.  L.  R.)  941. 

*  Coitmnv.  Braidwood,  1  M.  &  G.  (39  E.  C.  L.  R.)  882;  Henderson  v.  Hender- 
son, vhi  supra. 

y  liicardo  v.  Garcias,  uhi  supra. 

'■  Uencral  Steam  Navigation  Co.  v.  Guillou,  11  M.  &  W.  877.  And  sec  also  2 
Smith's  L.  C,  notes  to  Duchess  of'  Kingston's  case,  449. 

»  2  B.  &  Ad.  (22  E.  C.  L.  II.)  757  ;  see  also  the  observations  of  Lord  Ellen- 
liorough  in  Jiuchanan  v.  liucJcer,  1  Camp.  63. 

''  Ah  to  this  point,  sec  also  Rapcr  v.  Birbcck,  15  East  17  ;  Wilkinson  v.  John- 
son, 3  B.  &  C.  (10  E.  C.  L.  R.)  428. 


FOREIGN     JUDGMENTS,     WHETHER     CONCLUSIVE.       355 

for  obvious  reasons,  set  aside  the  judgment  of  a  court  of  a  foreign 
country,  for  a  mistake  of  the  law  of  that  country,  unless  the  error  be 
very  manifest."  So  if  the  foreign  judgment  be  contrary  to  the  law  of 
nations  it  may  be  impeached  ;''  and  if  it  be  so  defective  that  it  is  not 
clear  what  point,  or  whether  any,  was  decided,  it  cannot  have  any  effect 
as  evidence.*^ 

The  proceedings  upon  which  a  foreign  judgment  has  been  obtained, 
are  also,  to  a  certain  extent,  open  to  examination,  for  the  purpose  of 
ascertaining  whether  the  judgment  has  been  fairly  obtained,  and  pro- 
nounced by  proper  authority,  in  a  case  within  the  jurisdiction  of  the 
court. 

Thus,  the  judgment  is  not  binding  if  the  court  be  constituted  by 
persons  interested  in  the  matter  in  dispute.^  So,  where  the  plaintiiF 
declared  in  assumpsit  on  a  foreign  judgment  in  the  island. of  Tobago,^ 
and  upon  the  trial  a  copy  of  the  proceedings  and  judgment  was  pro- 
duced, from  which  it  appeared  that  the  defendant  had  been 
summoned   *by  nailing  up  a  copy  of  the  declaration  at  the    '-  -' 

court-house  door,  upon  which  judgment  was  afterwards  given  by  de- 
fault, and  no  evidence  was  given  that  the  defendant  had  ever  been 
present  in  the  colony,  or  subject  to  the  jurisdiction  of  the  colonial 
court.  Lord  Ellenborough  nonsuited  the  plaintiff,  and  a  rule  of  nisi 
for  a  new  trial  was  afterwards  refused.""  So  in  the  case  of  Cavan  v. 
Stewart,'  Lord  Ellenborough  held  that  a  party  here  was  not  bound  by 
a  colonial  judgment,  unless  it  appeared  that  he  had  been  summoned, 
or  it  was  proved  that  he  had  been  once  resident  upon  the  island  ;  and 
that  it  was  not  sufficient  that  he  Avas  described  as  an  absentee  on  the 

"Becquet  v.  McCarti/h,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  957  ;  Alivon  v.  Funiival, 
1  C,  M.  &  R.  293.  Or  unless  it  be  clear  that  the  grounds  do  not  warrant  the 
decision  :    Calvert  v.  Bovill,  7  T.  R.  523  ;  Pollard  v.  Bell,  8  T.  R.  434. 

<•  Baring  v.  Clagett,  3  B.  &  P.  201  ;    Wo{f  v.  Oxliolm,  6  M.  &  S.  92. 

«  Obicini  v.  Bligh,  8  Bing.  (21  E.  C.  L.  R.)  335. 

^  Price  V.  Dewhurst,  8  Sim.  279. 

^  Buchanan  v.  Rucker,  9  East  192.  And  see  Lord  Tenterden's  observation  on 
this  case  in  Gainness  v.  Carroll,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  461. 

''  It  appeared  that,  by  a  law  of  the  colony,  if  a  defendant  be  absent  from  the 
island,  and  have  no  attorney,  manager,  or  overseer  there,  such  mode  of  sum- 
moning should  be  deemed  good  service.  But  the  court  held,  1st,  That  the  law 
applied  to  those  only  who  had  once  been  present  upon  the  island  ;  and  2dly, 
That  if  its  terms  could  be  construed  to  extend  to  those  who  had  never  been 
present,  the  law  could  not  be  operative  upon  them.  And  see  Douglas  v.  For- 
rest, 4  Bing.  (13  E.  C.  L.  R.)  686;  Frankland  v.  McGusly,  1  Knapp.  Pr.  C.  C. 
274;   Obicini  v.  Bligh,  8  Bing.  (21  E.  C.  L.  R.)  335. 

*  1  Stark.  C.  (2  E.  C.  L.  R.)  525. 


356  JUDICIAL     DOCUMENTS. 

face  of  the  proceedings.  And  in  the  case  of  Ferguson  v.  MeJion,^ 
which  was  an  action  of  debt  upon  a  judgment  of  the  Court  of  Com- 
mon Pleas  in  Irehmd,  obtained,  as  it  appeared  from  the  defendant's 
plea,  behind  the  back  of  the  defendant.  Lord  Denman,  C.  J.,  in  de- 
livering the  judgment  of  the  court,  observed,  "  It  Avas  argued,  that 
if  the  judgment  was  in  fact  open  to  the  objection  urged  upon  the 
plea,  it  was  irregular  only,  and  might  have  been  set  aside  upon  ap- 
plication to  the  court  in  which  it  was  recovered  ;  and  that  we  were 
bound  to  respect  it  as  a  valid  judgment,  so  long  as  it  stood  unreversed. 
This  argument  puts  an  Irish  judgment,  in  this  respect,  on  the  same 
footing  precisely  as  a  judgment  recovered  in  one  of  the  superior 
courts  of  this  country  ;  but,  although  a  record  for  certain  purposes, 
the  inquiry  is  still  open,  not  indeed  into  the  merits  of  the  action,  or 
r-^q-r-r-i  the  fvo'priety  of  the  decision,  *but  whether  the  judgment 
passed  under  such  circumstances  as  to  show  that  the  court 
had  properly  jurisdiction  over  the  party  ;  and  when  it  appears,  as 
here,  that  the  defendant  has  never  had  notice  of  the  proceeding,  or 
been  before  the  court,  it  is  impossible  for  us  to  allow  the  judgment 
to  be  made  the  foundation  of  an  action  in  this  country.  "' 

■^  11  Ad.  &  E.  (39  E.  C.  L.  R.)  179. 

^  In  the  case  of  Bissell  v.  Briggs,  9  Mass.  462,  Parsons,  C.  J.,  says,  if  a  foreign 
judgment  be  produced  by  a  party,  to  obtain  the  execution  of  it  here,  the  juris- 
diction of  the  court  renderinif  it  is  still  open  to  inquiry.  And  if  a  defect  of 
jurisdiction  should  appear,  the  party  producing  the  judgment  must  fail,  without 
any  inquiry  into  its  merits.  Neither  the  Federal  Constitution  nor  the  Act  of 
Congress  (1790)  had  any  intention  of  enlarging,  restraining,  or  in  any  manner 
operating  upon  the  jurisdiction  of  the  legislatures  or  of  tlie  courts,  of  any  of 
the  United  States.  The  jurisdiction  remains  as  it  was  before;  and  the  public 
Acts,  records  and  judicial  proceedings  contemplated,  and  to  which  full  fixith 
and  credit  are  to  be  given,  are  such  as  were  within  the  jurisdiction  of  the  State 
whence  they  shall  be  taken.  Whenever,  therefore,  a  record  of  a  judgment  of 
any  court  of  any  State  is  produced  as  conclusive  evidence,  the  jurisdiction  of 
the  court  rendering  it  is  open  to  inquiry  ;  and  if  it  should  appear  that  the 
court  had  no  jurisdiction  of  the  cause,  no  faith  or  credit  whatever  will  be  given 
to  the  judgment.  And  upon  the  same  principle,  if  a  court  of  any  State  should 
render  judgment  against  a  man  not  within  the  State,  nor  amenable  to  the  juris- 
diction of  its  courts,  if  that  judgment  should  be  produced  in  any  other  State 
against  the  defendant,  the  jurisdiction  of  the  court  might  be  inquired  into; 
and  if  a  want  of  juris<liction  appeared,  no  credit  would  be  given  to  the  judg- 
ment. 

In  order  to  entitle  tin;  judgment  rendered  in  any  court  of  the  United  States  to 
the  full  faith  and  credit  mentioned  in  the  Federal  Constitution,  the  court  must 
lia\i'  li;i<l  jurisilietioii,  not  only  of  the  cause,  but  of  the  jiarties.  A  debtor  living 
in  one  SluLe  may  have  goods,  effects  or  credits   in   another,  where  the  creditor 


FOREIGN    JUDGMENTS,     HOW    FAR     EXAMINABLE.      357 

Irregularity  will  not,  however,  be  presumed,  and  the  party  seeking 
to  obviate  the  effect  of  a  foreign  judgment  must  clearly  show  it  to  be 

resides ;  and  such  creditor  may  there  attach  those  goods,  &c.,  pursuant  to  the 
laws  of  that  State  in  the  hands  of  the  bailiff,  factor,  trustee  or  garnishee  of 
his  debtor,  and  on  judgment,  those  goods,  &c.,  may  lawfully  be  applied  to 
satisfy  the  judgment.  If  however  those  goods,  &c.,  are  insufficient  to  satisfy 
the  judgment,  and  the  creditor  should  sue  an  action  on  that  judgment  in  the 
State  where  the  debtor  resides,  he  must  fail ;  because  the  defendant  was  not 
personally  amenable  to  the  jurisdiction  of  the  court  rendering  the  judgment. 
And  if  the  defendant,  after  the  service  of  the  process  of  foreign  attachment, 
should  either  in  person  have  gone  into  the  State  or  constitute  an  attorney,  so  as 
to  protect  his  goods,  &c.,  from  the  effect  of  the  attachment,  he  would  not  thereby 
have  given  the  court  jurisdiction  of  his  person;  since  the  jurisdiction  must 
result  from  the  service  of  the  foreign  attachment.  Under  the  articles  of  con- 
federation it  was  decided  in  Pennsylvania  that  a  judgment  obtained  by  default 
in  a  court  of  another  State,  without  actual  notice,  and  upon  a  mere  nominal 
attachment  of  the  defendant's  property,  was  not  conclusive  evidence  in  a  suit 
on  such  judgment:  Phelps  v.  Halker^  1  Dall.  261.  And  in  Connecticut,  in  an 
action  of  debt  on  a  judgment  similarly  obtained,  the  court,  on  demurrer,  decided 
for  the  defendant,  on  the  ground  that  the  court  which  rendered  the  judgment 
had  no  jurisdiction :  Kibhe  v.  Kibbe,  Kirby  119.  And  since  the  adoption  of  the 
constitution  it  has  repeatedly  been  decided  in  New  York  that  an  action  cannot 
be  sustained  on  a  judgment  recovered  in  another  State,  in  a  suit  commenced  by 
an  attachment  of  goods  without  any  personal  summons  or  actual  notice  to  the 
defendant,  such  judgment  not  being  even  prima  Jacie  evidence,  but  wholly 
void  :  Kilburn  v.  Woodworth,  5  Johns.  37  ;  Robinson  v.  Ward^s  Exrs.,  8  Johns. 
86  ;  Fenton  v.  Garlick,  8  Johns.  194  -,  Pawling  et  ux.  v.  Wilson  et  al.,  13  Johns. 
192;  see  also  Borden  v.  Fitch,  15  Johns.  121,  where  this  subject  is  very  fully 
discussed.  The  same  doctrine  is  held  in  New  Hampshire :  Therber  v.  Black- 
burne,  1  N.  H.  242.  (And  Connecticut:  Aldrich  v.  Kinney,  4  Conn.  380. — I.) 
A  judgment  thus  obtained  in  another  State  is  held  in  Pennsylvania,  Kentucky 
and  Vermont  to  be  prima  facie  evidence  but  subject  to  inquiry  and  impeach- 
ment: Betts  V.  Death,  Addis.  265;  Rogers  v.  Coleman  et  tix.,  Hardin  413;  see 
also  Price  v.  Higgins,  1  Litt.  274 ;  King  v.  Van  Gilder,  1  Chip.  59.  In  Ten- 
nessee, it  is  held  that  the  decree  of  a  court  of  equity  of  another  State  may  be 
examined  and  relief  afforded,  if  it  appears  that  the  defendant  had  not  proper 
notice  :  Glasgow  v.  Lawther,  Cooke  464  ;  see  also  Winchester  v.  Jackson,  1  Hayw, 
316.  In  an  action  in  Connecticut  on  a  judgment  recovered  in  Massachusetts, 
where  the  defendant  pleaded  that  at  the  time  the  former  suit  was  commenced, 
he  was  not  an  inhabitant  of  Massachusetts,  nor  resident,  nor  had  property  there, 
the  plea  was  held  bad  because  it  did  not  deny  notice :  Smith  v.  Rhoads,  1  Day 
108.  It  follows  perhaps  from  the  construction  given  by  the  Supreme  Court  of 
the  United  States  to  the  constitution  and  to  the  statute  of  1790,  that  a  judgment 
upon  an  attachment  merely,  without  actual  notice  to  the  defendant,  must  have 
the  same  effect  when  put  in  suit  in  another  State,  as  it  has  in  the  State  where 
it  is  rendered.  If  in  such  case,  therefore,  a  judgment  thus  rendered  is,  in  any 
State,  conclusive  only  as  to  the  property  attached,  it  can  have  no  greater  effect 
when  sued  in  another  State.     Whereas,  if  in  any  State,  such  judgment  is  con- 


357  JUDICIAL     DOCUMENTS. 

contrary  to  natural  justice  or  defective  in  itself.  Thus  in  Henderson 
V.  Henderson,^  Lord  Denman,  C.  J.,  in  delivering  the  judgment  of 
the  Court  of  Queen's  Bench,  observed,  "  Several  pleas  were  pleaded 
to  show  that  the  defendant  had  not  had  justice  done  him  in  the  Court 
of  Chancery  in  Newfoundland.  This  is  never  to  be  presumed;  but 
the  contrary  principle  holds,  unless  we  see  in  the  clearest  light  that 
the  foreign  law,  or  at  least  some  part  of  the  proceedings  of  the 
foreign  court,  are  repugnant  to  natural  justice;  and  this  has  been 
often  made  the  subject  of  inquiry  in  our  courts.  But  it  steers  clear 
of  an  inquiry  into  the  merits  of  the  case,  upon  the  facts  found;  for 
whatever  constituted  a  defence  in  that  court  ought  to  have  been 
pleaded  there."  And  where  a  party,  once  resident  in  a  colony, 
absented  himself  from  it  without  leaving  any  attorney,  but  it  was 
the  duty  of  the  procurator  fiscal  to  take  care  of  the  interest  of  an  ab- 

1  6  Q.  B.  (51  E.  C.  L.  R.)  298. 

elusive  as  to  the  matter  decided,  and  will  operate  against  the  person  and  estate 
of  the  defendant  generally  :  or  is  so  far  inconclusive,  that  it  may,  within  a 
limited  term,  be  opened  and  examined,  upon  the  performance  of  certain  condi- 
tions ;  the  same  effect  is  to  be  given  to  it  in  the  courts  of  other  States.  And  this 
is  the  view  taken  of  the  subject  by  Washington,  J.,  in  the  case  of  Green  v.  Sar- 
miento,  Peters  C.  C.  74.  If  the  law  of  any  State,  says  the  same  learned  judge, 
does  not  prohibit  such  an  outrage  upon  the  immutable  dictates  of  justice,  as  the 
exemption  of  any  judgment  from  re-examination,  which  may  have  been  ex  parte, 
the  defendant  having  had  no  opportunity  to  make  his  defence,  then  the  court 
which  inadvertently  gave  the  judgment  or  a  superior  court  would  provide  the 
redress:  And  if  the  law  or  the  courts  should  leave  the  injured  party  without  a 
remedy,  and  the  courts  of  another  State  would  be  bound  to  consider  such  judg- 
ment as  conclusive  (on  which  question  it  was  not  necessary  to  give  an  opinion) 
then  the  Act  of  1790  was  not  passed  with  sufficient  consideration,  and  it  may 
and  ought  to  be  so  amended  as  to  give  a  conclusive  effect  to  judgments  only  in 
cases  when  the  trial  was  perfectly  fair,  and  when  both  parties  were  or  might 
have  been  heard.  Ibid.  As  nothing  can  be  assigned  for  error  and  no  averment 
can  be  admitted,  which  contradicts  a  record,  a  party  to  a  judgment  obtained  in 
another  State,  in  the  record  of  which  it  is  stated  that  he  appeared  and  pleaded 
by  attorney,  cannot  successfully  plead  to  an  action  on  that  judgment,  in  another 
State,  that  he  had  no  notice  of  the  original  suit,  and  never  authorized  any 
person  to  consent  to  any  proceedings  therein.  His  remedy,  if  he  had  no  notice 
is  the  same  (and  no  other)  that  would  be  open  to  him,  if  the  second  suit  had 
been  brought  in  the  State  where  the  judgment  was  rendered:  Field  v.  Gibbs, 
Peters  C.  C.  155.  So  if  the  original  judgment  had  been  entered  by  default  for 
non-appearance,  upon  a  false  return  of  the  officer.     Ibid.  M. 

liut  in  Aldrich  v.  Kinneij,  4  Conn.  3<S0,  it  was  decided  that  in  an  action  on  a 

judgment  rendered  in  another  State,  evidence  on  the  part  of  the  defendant,  that 

■  he  had  no  legal  notice  of  the  suit  and  did  not  appear,  was  held  admissible, 

although  the  record  of  such  judgment  stated  that  the  defendant  api)eared  by  his 

ullo.noy.  *• 


FOREIGN    JUDGMENTS,     HOW     FAR     EXAMINABLE.      858 

sentee,  the  judgment  was  lield  to  be  binding."  *So  Avhere  in  r^orc-i 
an  action  here  on  a  French  judgment,  in  answer  to  a  plea  that 
the  defendant  had  no  notice  of  the  proceedings  abroad,  and  that  he 
was  not  in  France  at  the  time  of  the  accruing  of  the  cause  of  action, 
or  since,  a  replication  that  the  claim  arose  against  him  as  a  share- 
holder in  a  French  company,  and  being  resident  in  England,  he  was 
bound  as  a  shareholder  to  elect  some  place  as  a  domicile  where  to  be 
served  with  process  and  notices  as  a  shareholder,  and  that  having 
elected  such  a  place,  notices  of  the  proceedings  were  there  served,  was 
held  to  afford  a  good  answer." 

Credit  also  will  be  given  to  facts  specifically  alleged  on  the  judg- 
ment :  where  the  judgment  (by  default)  stated  that  the  defendant 
appeared  by  attorney,  it  is  to  be  presumed  that  he  had  authority  to 
appear  for  the  defendant."  ^ 

"  Becquet  v.  McCarthy,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  958.  So  an  action  lies 
on  a  Scottish  judgment  of  horning  against  a  Scotchman  born  :  Dovglas  v.  Forrest, 
4  Bing.  (13  E.  C.  L.  11.)  686.  And  where  the  plaintiff  declared  upon  a  decree 
of  the  Court  of  Sessions  in  Scotland,  and  the  defendant  pleaded  that  he  was  not 
at  the  commencement  of  the  suit,  or  at  any  time  during  the  proceedings  therein, 
in  Scotland,  or  within  the  jurisdiction  of  the  court,  nor  at  any  time  before  pro- 
nouncing the  decree,  according  to  the  course  and  practice  of  the  court  notified, 
nor  did  he  then  know  of  the  proceedings  so  that  he  could  or  might  by  himself, 
his  proctor,  attorney,  or  agent,  appear  or  plead,  or  in  any  way  defend  himself 
in  the  action,  nor  did  he  appear  to  any  of  the  proceedings ;  but  did  not  allege 
that  he  was  not  born  or  domiciled  in  Scotland,  or  that  he  was  not  subject  to  its 
laws,  or  that  he  had  no  property  there;  the  plea  was  held  insufficient:  Cowan 
and  others  v.  Braidicood,  1  M.  &  G.  (39  E.  C.  L.  R.)  882.  And  see  Eussell  v. 
Smyth,  9  M.  &  W.  810 ;  Reijnolds  v.  Fenton,  3  C.  &  B.  (54  E.  C.  L.  R.)  187. 

°  Vallee  v.  Dumergue,  4  Ex.  290.  And  see  Banl:  of  Australasia  v.  Nias,  20 
L.  J.,  Q.  B.  284. 

°  Molony  v.  Gibbons,  2  Camp.  502. 

'  In  an  action  upon  a  record  of  a  foreign  judgment,  showing  that  there  was 
no  service  of  process,  but  that  the  appearance  of  defendant  was  entered  by  an 
attorney,  it  is  competent  to  show  that  the  attorney  who  entered  the  appearance 
did  so  without  authority  ;  Thompson  v.  Emmert,  15  111.  415,  Unless  the  record 
of  a  judgment  shows  on  its  face,  that  the  court  had  jurisdiction  of  the  person, 
the  judgment  is  a  nullity  :  Steen  v.  Sfeen,  25  Miss.  513  ;  Farmers^  Co.  v.  McKin- 
ney,  6  McLean  1.  No  person  is  a  p.arty  to  a  suit  or  bound  by  a  judgment 
therein,  without  a  judicial  notice  of  some  sort:  Shaefer  v.  Gates,  2  B.  Monr. 
453  ;  Englehead  v.  Sutton,  7  How.  (Miss.)  99  ;  Clark  v.  Grayson,  2  Pike  149.  No 
State  can  bind  personally,  by  its  judgment,  a  defendant  who  is  not  within  its 
jurisdiction,  and  on  whom  notice  has  not  been  served :  Lincoln  v.  Tower,  2 
McLean  473.  Where  a  judgment  is  brought  collaterally  before  the  court  as 
evidence,  it  may  be  shown  to  be  void  for  want  of  notice  to  the  person  against 
whom  it  was  rendered  or  for  fraud :  Webster  v.  Reid,  11  How.  (S.  C.)  437.     An 


358  JUDICIAL    DOCUMENTS. 

To  make  a  foreign  judgment  operate  as  a  bar  to  the  plaintiff's 
claim,  it  must  appear  that  it  was  a  final  and  conclusive  judgment. '' 

It  seems  to  be  a  general  rule  with  respect  to  foreign  judgments, 
which  are  not  unfrequentlj  inaccurately  expressed,  to  regard  their 
substance,  and  not  their  form,  and  this  is  according  to  the  rule 
adopted  by  the  Privy  Council.'' 

The  rule  (as  to  examining  previous  proceedings)  appears  to  be  the 

same  with  respect  to  the  judgments  of  inferior  courts  in  this  country. 

In  Fisher  v.  Lane^  the  plaintiff,  *an  administrator,  brought 

L  '^'^  -I    assum'psit  for  goods  sold  and  delivered  by  the  intestate;  the 

P  Bonn  V.  Lippmann,  5  CI.  &  F.  21  ;  Callander  v.  Dittrich,  4  M.  &  G.  (43  E. 
C.  L.  R.)  68  ;  and  see  ante,  p.  352,  n.  (r). 

1  Per  Lord  Tenterden  in  Henley  v.  Soper,  8  B.  &  C.  (15  E.  C.  L.  R.)  20. 

r  ?>  Wils.  297.  So  Tamm  v.  Williams,  2  Ch.  R.  438 ;  Bruce  v.  Wait,  1  M.  & 
G.  (39  E.  C.  L.  R.)  1.  In  Herbert  v.  Cooke,  Willes  36,  note  (a),  it  was  held 
that  in  an  action  of  debt,  on  a  judgment  of  an  inferior  court,  not  of  record,  the 
defendant  might  plead  that  the  cause  of  action  arose  beyond  the  jurisdiction  of 
the  court:  Briscoe  v.  Stephens,  2  Ring.  (9  E.  C.  L.  R.)  213 ;  Stanton\.  Styles,  1 


absent  defendant  is  not  bound  by  a  judgment  in  a  proceeding  against  his 
property  beyond  the  property  in  question:  Bosivell  v.  Otis,  9  How.  (S.  C.)  336. 
Where  the  record  omits  to  state  that  the  court  had  jurisdiction  of  the  person  of 
the  defendant,  such  jurisdiction  cannot  be  inferred  from  the  judgment.  And 
even  when  the  record  does  state  that  the  defendant  did  appear,  it  seems,  that  it 
is  competent  for  him  to  controvert  the  fact  and  to  show  that  he  did  not  appear 
and  was  not  in  a  situation  to  receive  notice  :  Bradshaw  v.  Heath,  13  Wend.  407. 
A  judgment  of  a  state  court,  the  record  of  which  shows  that  a  defendant  had 
no  personal  notice  and  did  not  appear  and  submit  to  the  jurisdiction  of  the 
court,  is  not  entitled  under  the  constitution  and  laws  of  the  United  States,  to 
full  faith  and  credit  in  every  court  within  the  United  States :  D^Arcy  v. 
Kefchum,  11  IIow.  (S.  C.)  165;  Rathhone  v.  Terry,  1  R.  I.  73;  Thompson  v. 
IJnimert,  4  McLean  96 ;  Downer  v.  Shaiv,  2  Fost.  277.  In  a  suit  against  a  part- 
nership, if  one  partner  is  not  within  the  jurisdiction  of  the  court  and  is  not 
served  with  process,  and  does  not  voluntarily  appear  and  answer  to  the  suit  by 
himself  or  his  attorney,  the  judgment  against  the  partnership,  cannot  be  en- 
forced against  him  out  of  the  local  jurisdiction  ;  even  though,  by  the  lex  loci,  a 
service  on  the  partner  resident  within  the  jurisdiction,  is  suiEcient  to  authorize 
a  judgment  against  all  the  partners:  Phelps  v.  Breicer,  9  Cush.  390.  When  a 
corporation  confines  its  business  within  the  State  which  chartered  it,  service  of 
process  upon  one  of  its  officers  accidentally  within  another  State,  made  under  a 
hiw  of  that  State  sanctioning  such  service,  does  not  properly  give  jurisdiction  : 
Moulin  v.  Trenton  Ins.  Co.,  4  Zabr.  222.  Facts  on  the  record  necessary  to  give 
jurisdiction  cannot  be  controverted  :  JAncoln  v.  Tower,  2  McLean  473  ;  Wester- 
velt  v.  Lewis,  Ibid.  511.  Matters  determined  by  the  record  cannot  be  contro- 
verted by  plea.  But  matters  extrinsic  may  be  sliown,  as  by  pleading  fraud, 
satifaction  or  want  of  jurisdiction  in  the  court  rendering  the  judgment:  Cratv- 
''ord  v.  Simonton,  7  Port.  110. 


JUDGMENTS     OF    INFERIOR     COURTS.  359 

defendant  gave  in  evidence  the  payment  of  a  sum  of  money  in  con- 
sequence of  a  judgment  upon  a  foreign  attachment  in  London. 
From  the  minutes  of  the  judgment,  it  appeared  that  Henry  Janson 
had  by  this  process  attached  the  sum  of  X92  188.  in  the  hands  of  the 
defendant,  for  a  debt  due  from  the  intestate,  and  for  default  of  the 
present  phaintifF  in  not  appearing,  had  had  execution  ;  but  it  did  not 
appear  from  the  proceedings  that  the  plaintiff  had  received  any 
notice  of  the  process,  and  the  sergeant-at-macc  stated  that  such  was 
the  custom  of  the  City  Court.  The  Court  of  Common  Pleas  held 
that  the  judgment  was  erroneous,  since  the  plaintiff  who  had  never 
been  summoned,  had  made  no  default. ° 

A  judgment  and  process  of  execution  in  a  County  Court,  being 
pleaded  in  bar  of  an  action  of  trespass,  it  was  held  that  the  jury 
were  at  liberty  to  consider  the  whole  of  the  proceedings  fraudulent 
and  collusive,  no  process  having  been  served,  or  appearance  entered, 
although  a  motion  to  set  aside  the  proceedings  of  the  court  below 
had  been  made  without  effect.' 

It  is  also  to  be  observed,  that  error  or  insufficiency,  manifest  on 
the  face  of  the  proceedings,  before  courts  of  inferior  jurisdiction, 
may  usually  be  objected,  even  where  the  *conviction  of  ad-  r*qf^A-i 
judication  is  offered  in  justification  of  some  act  done  under 
its  authority."  And  the  decree  of  an  incompetent  court  in  the  time 
of  Queen  Elizabeth  unknown  to  the  law  is  inadmissible,  unless  the 
parties  by  voluntary  submission  have  given  it  the  effect  of  an  award. "^ 

Secondly,  where  a  judgment  is  offered  to  prove  the  same  fact,  but 
for  a  different  or  collateral  purpose,  then  if  the  judgment  was  by  a 

L.  M.  &  P.  575.  In  Huxham  v.  Smith,  2  Camp.  C.  19,  Lord  Ellenborough  held 
that  the  judgment  against  the  defendant  as  garnishee  in  the  Lord  Mayor's 
Court  was  prima  facie  evidence  of  a  debt  on  a  cause  of  action  within  the  city  of 
London  ;  but  he  admitted  evidence  to  prove  the  contrary.  But  he  held  that  the 
judgment  was  conclusive  as  to  the  debt. 

'  See  also  Williams  v.  Lord  Bagot,  in  error,  3  B.  &  C.  (10  E.  C.  L.R.)  772, 
where  it  was  held  that  a  custom  in  an  inferior  court  to  declare  against  a  de- 
fendant before  an  appearance  entered  by  him,  or  by  some  person  for  him,  was 
bad  in  law  ;  and  it  seems  also  that  a  custom  to  issue  a  summons  and  attach- 
ment at  the  same  time,  is  also  bad. 

*  Thom2)so7i  v.  Blackhurst,  1  Nev.  &  M.  (28  E.  C.  L.  R.)  266. 

"  As  in  the  case  of  a  summary  conviction  before  a  magistrate  ;  see  the  cases 
and  recent  statute,  Vol.  II.,  tit.  Justices.  It  would  probably  be  diflPerent  in  the 
case  of  a  judgment  in  a  court  of  record,  which,  though  erroneous,  is  in  force  till 
it  is  reversed.  In  Mann  v.  Owen,  9  B.  &  C.  (17  E.  C.  L.  R.)  595,  the  Court  of 
King's  Bench  investigated  the  jurisdiction  of  a  court  martial. 

^  Rogers  v.  Wood,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  245. 


360  JUDICIAL    DOCUMENTS. 

court  of  exclusive  jurisdiction,  it  is  conclusive  evidence  upon  the 
question  so  incidentally  arising.''  In  an  action  upon  a  contract  of 
marriage,  per  verba  de  ficturo,  the  defendant  gave  in  evidence  a  sen- 
tence of  the  Spiritual  Court  in  a  cause  of  contract,  where  the  judge 
had  pronounced  against  a  suit  for  the  solemnization  in  the  face  of 
the  church,  and  declared  the  defendant  free  from  all  contract,  and 
this  was  held  to  be  conclusive  evidence,  although  the  proceedings 
were  diverso  intuitu  ;  that  in  the  Spiritual  Court  being  for  a  specific 
performance,  and  that  in  the  action  for  damages.^ 

In  the  next  place,  although  the  judgment  or  decree  be  not  pro- 
nounced by  a  court  of  exclusive  jurisdiction  upon  the  subject-matter, 
yet,  if  the  same  point  once  determined  between  the  same  parties 
again  arise,  although  for  a  different  purpose,  the*  judgment,  it  seems, 
would  be  admissible  but  not  conclusive  evidence.'' 

*An  adiudication  of  a  criminal  nature  has  little  operation 
L  '  -•  as  evidence,  except  to  prove  the  mere  fact  of  adjudication, 
or  to  establish  its  own  legal  consequences. 

The  principles  adverted  to  seem  to  exclude  a  verdict  in  a  criminal 
proceeding  from  being  evidence  in  one  of  a  civil  nature.  For,  inde- 
pendently of  other  objections  in  such  cases,  the  parties  are  not  the 
same ;  and,  therefore,  there  is  not  such  a  mutuality  as  is  essential 
to  an  estoppel.* 

In  an  action  brought  by  a  private  person,  the  acquittal  of  the 
defendant  upon  an  indictment  is  not  evidence,  because  the  plaintiff 
was  no  party  to  the  criminal  proceeding,  and  therefore  his  private 
remedy  ought  not  to  be  concluded  by  the  result.''  In  addition  to 
which  it  may  be  observed,  that  an  acquittal,  however  well  founded, 
would  seldom,  if  ever,  show  conclusively  that  the  defendant  had  not 
committed  any  injury  for  which  he  is  responsible  in  damages  ;  for  he 
may  be  liable   in   damages   without  having  acted  criminally  ;   e  co7i- 

^  According  to  the  juJo;ment  of  De  Gray,  C.  J.,  ante,  p.  323.  And  see  Da 
Costa  V.  Villa  Real,  Str.  901  ;  and  Siockdale  v.  Hansard,  9  Ad.  &  E.  (3G  E.  C. 
L.  R.)  62,  where  the  cases  are  collected. 

y  Da  Costa  v.  Villa  Real,  Str.  961. 

*  Lewis  V.  Clarges,  Gilb.  Law  of  Ev.  29.  A  judj);ment  in  replevin,  on  the  plea 
of  71071  tenuit  to  a  cognizance  for  rent  arrear,  is  admissible  evidence  in  an  action 
for  rent:  Hancock  v.  Welsh,  1  Stark.  C.  (2  E.  C.  L.  R.)  347.  Debt  on  bond,  plea 
usury,  the  judgment  in  an  action  by  the  defendant  against  the  plaintiff  for 
penalties,  is  evidence  for  the  plaintiff:  Cleve  v.  Poioell,  1  M.  &  Rob.  228  ;  Pearce 
V.  Gray,  2  Y.  &  C,  Ch.  C.  322. 

»  B.  N.  P.  245 ;  Gilb.  Law  of  Ev.  30 ;  Hudson  v.  Robinson,  per  Lord  Ellen- 
borough,  4  M.  &  S.  478. 

••  Su]/ra,  p.  332. 


JUDGMENT,     EFFECTS     OF.  361 

verso,  a  conviction  upon  an  indictment  is  not  evidence  for  the  plain- 
tiff in  an  action  for  the  same  wrong  :  first,  because  the  defendant 
upon  the  indictment  could  not  have  attainted  the  jury  for  a  false 
verdict ;  secondly,  because  there  is  no  mutuality  ;  tlnrdly,  because  it 
does  not  appear  that  the  verdict  was  not  procured  by  means  of  the 
testimony  of  the  opposite  party."  Accordingly,  a  conviction  upon  an 
indictment  for  trespass  is  not  evidence  upon  an  action  brought  for 
the  same  trespass  ;*^  and  a  conviction  upon  an  indictment  for  a 
*conspiracy  was  not  binding  upon  the  ancient  writ  of  con-  r^opQ-i 
spir^cy  by  the  same  party.®  But  where,  upon  an  indict- 
ment the  defendant  confesses  his  guilt,  the  confession  is  evidence  in 
a  civil  proceeding,^  since  those  objections  do  not  apply  ;  for  the  re- 
cord does  not  rest  upon  the  testimony  of  any  interested  witness  ; 
and  an  attaint  must  always  have  been  out  of  the  question.  It  has, 
indeed,  been  laid  down  that  a  conviction  in  a  court  of  criminal  juris- 
diction is  conclusive  evidence,  if  the  same  facts  afterwards  come  col- 
laterally in  controversy  in  a  court  of  civil  jurisdiction.^  And,  there- 
fore, that  the  conviction  of  the  father  upon  an  indictment  for  bigamy 
would  be  conclusive  in  ejectment  as  to  the  validity  of  the  second 
marriage,  although  an  acquittal  would  be  no  proof  of  the  reverse. 
In  support  of  this  position  no  authority  is  cited  except  that  of  Boyle 
V.  Boyle  ;^  but  the  question  there  was,  whether  a  prohibition  should 
not  be  awarded  in  a  jactitation  suit,  the  complainant  in  that  suit 
having  been  convicted  of  bigamy  in  marrying  a  second  wife,  whilst 
his  first  wife,  the  defendant  in  the  jactitation  suit,  was  living ;  and  a 
prohibition  was  granted.     Admitting  this  decision   to  be  law,  it  can 

"  In  Gilb.  Law  of  Ev.  31,  it  is  urged,  that  where  the  verdict  is  founded  on 
other  evidence  besides  the  party's  own  oath,  it  is  admissible  ;  but  how  are  the 
jury  to  know  what  weight  the  oath  of  the  party  had?  It  may  be  questioned 
whether  the  reasons  founded  on  the  interest  of  the  witness  are  now  at  all 
available. 

^  Sampson  v.  Toothil,  1  Sid.  324 ;  B.  N.  P.  243  ;  Jones  v.  White,  Str.  68  ;  Wil- 
kinson V.  Gordon,  2  Add.  152. 

®  27  Ass.  13  ;  Tr.  per  Pais  30.  A  process  long  obsolete,  and  now  virtually 
abolished  by  the  Uniformity  of  Process  Act.  2  &  3  Will.  IV.  c.  39. 

^  Such  evidence  is  warranted  by  the  old  authorities.  See  Lamb.  Inst.  B.  2,  c. 
9  ;  9  II.  6  ;  60,  11  II.  4,  65 ;  Trials  per  Pais,  30 ;  27  Ass.  7.  The  reason  given 
by  Sharde  is,  that  a  confession  is  stronger  than  a  verdict.  In  such  a  case,  the 
objection,  that  the  verdict  may  have  been  obtained  on  the  evidence  of  the  party 
who  now  seeks  to  take  advantage  of  it,  ceases  ;  and  the  case  seems  to  stand  upon 
the  same  footing  with  that  of  any  other  admission  ;  and  so  ruled  by  AVood,  B., 
Leicester  Lent  Assizes  1808.     So,  Tiley  v.  Coivling,  1  Ld.  Ilaym.  744. 

e  B.  N.  P.  245. 

"3  Mod.  164;  Comb.  72,  s.  c. 


6bZ  JUDICIAL     DOCUMENTS. 

scarcely  be  inferred  that  the  conviction  would  have  been  equally 
conclusive  of  civil  rights  in  a  temporal  court.  Indeed,  where  an 
action  was  brought  for  words  which  charged  the  plaintifif  with  felony, 
r^qpq-|    it   was  hcld  that  the  defendant  was  at   liberty  to    go    *into 

evidence  to  prove  his  guilt,  because  what  had  passed  between 
others  could  not  affect  him.' 

As  a  general  rule,  therefore,  a  verdict  or  judgment  in  a  criminal 
case  is  not  evidence  of  the  fact  upon  which  the  judgment  was  founded 
in  a  civil  proceeding. 

The  case  of  The  King  against  The  Warden  of  the  Fleet^  is  a  strong 
authority  for  this  position.  The  defendant  was  tried  at  bar  for  per- 
mitting the  escape  of  prisoners  from  the  Fleet  Prison.  To  prove 
the  escape  a  witness  was  offered  who  had  been  a  prisoner.  It  was 
objected  that  he  was  incompetent,  since  he  had  given  a  bond  for  his 
being  a  true  prisoner,  which  he  had  forfeited  by  his  escape;  and  be- 
sides that,  he  had  been  retaken ;  and  that  if  the  defendant  should 
be  convicted  upon  his  evidence,  and  debt  should  afterwards  be 
brought  by  him  upon  the  bond,  the  conviction  would  be  evidence  to 
make  it  void,  as  taken  for  ease  and  favor ;  and  that  in  an  action  of 
false  imprisonment  for  the  retaking,  the  conviction  would  also  be 
evidence.  But  it  was  answered,  and  resolved  by  the  court,  that  the 
conviction  would  be  no  evidence  against  the  warden  upon  debt  on  the 
bond,  nor  for  the  prisoner  in  false  imprisonment  against  the  warden  ; 
because  it  would  not  be  between  the  same  parties.  For  a  conviction 
at  suit  of  the  King  for  battery,  &c.,  cannot  be  given  in  evidence  in 
an  action  of  trespass  for  the  same  battery,  nor  vice  versa  ;  the  like 
law  of  an  usurious  contract.  In  the  case  of  Hillyard  v.  Grantham, 
r*^CS~\    ^po^  ^^®  ^^^^^  ^^  ^^^'  ^^®  Court  of  King's   *Bench  were  of 

opinion  that  a  sentence  of  excommunication  against  the 
father  and  mother  for  fornication  was  not  admissible  in  evidence  upon  an 
ejectment  to  bastardize  the  issue,  because  it  was  a  criminal  matter, 
and  therefore  could  not  be  admitted  in  a  civil  cause  ;  and  also  because 
it  was  res  inter  alios  acta.     And  in  the  case  of  Cribson  v.  Macarty^ 

»  Enyland  v.  BourJce,  3  Esp.  80 ;  Cook  v.  Field,  3  Esp.  133.  An  acquittal  of 
a  party  by  the  jud<^ment  of  a  court-martial  from  the  charge  on  which  he  was 
arrested,  does  not  deprive  the  defendant,  in  an  action  of  trespass  for  the  arrest, 
of  his  right  to  justify,  on  the  ground  that  there  was  reasonable  and  probable 
cause  for  the  imprisonment :  Jiai/lei/  v.  Warden,  4  M.  &  S.  400. 

"  12  Mod.  339 ;  see  also  the  cases  of  R.  v.  Boston,  4  East  572 ;  and  Bartlett  v. 
Pickersgill,  Ibid.  577,  in  which  the  principle  is  fully  established,  that  a  convic- 
tion obtained  on  the  oath  of  an  interested  party  is  of  no  eifect. 

'  Cited  Ca.  temp.  Hard.  311. 

"  Ca.  temp.  Hard.  311. 


VERDICTS,  ETC.,  IN  CRIMINAL  CASES.        364 

■where  the  question  was  whether  certain  promissory  notes  were  genu- 
ine, the  defendant  offered  in  evidence  the  record  of  the  phxintiff's 
conviction  for  the  forgery  of  one  of  the  notes ;  but  Lord  Hardwicke 
refused  to  admit  the  evidence,  on  the  ground  suggested  by  the 
phiintiff's  counsel,  viz.,  that  no  record  of  a  conviction  could  be 
evidence  in  a  civil  suit,  because  it  might  have  been  obtained  by  the 
evidence  of  a  party  interested.  And  the  same  doctrine  is  re- 
ported to  have  been  expounded  by  the  court  in  the  case  of  Rich- 
ardson V.  Williams.^  In  the  case  of  The  King  v.  Boston,"  decided 
while  the  law  excluded  the  *testimony  of  an  interested  wit-  r*q^r-| 
ness,  it  was  held,  on  an  indictment  for  perjury,  assigned 
upon  an  answer  to  a  bill  of  injunction,  that  the  prosecutor,  against 
whom  the  defendant  had  brought  the  action  at  law,  was  a  competent 
witness,  on  the  express  ground  that  the  conviction  could  not  be  used 
by  him  for  the  purpose  of  obtaining  relief  in  equity. 

The  main  objection  to  the  reception  of  such  evidence  is  that  there 
would  be  no  mutuality  ;  for  an  acquittal  of  a  party  on  a  criminal 
proceeding   would  not   be  available  in   a  civil    action. ^     Where    the 

"  12  Mod.  319  ;  and  see  Jones  v.  White,  Str.  68,  where  the  question  was, 
whether  upon  the  issue  devisavit  vel  non,  the  coroner's  inquest,  finding  the  de- 
ceased a  lunatic,  was  admissible  in  evidence  ;  and  the  judges  were  divided  upon 
the  question  of  admissibility.  But  Eyre  and  Pratt,  Js.,  were  for  excluding  the 
evidence,  because  the  proceeding  was  of  a  criminal  nature,  and  therefore  was 
not  admissible  in  a  civil  proceeding.  And  the  Chief  Justice,  and  Powys,  J., 
thought  it  admissible,  on  the  special  ground,  that  since  the  plaintiff  was  exe- 
cutrix, the  inquest  which  saved  the  personal  estate,  was  to  her  advantage  ;  and 
see  R.  V.  Bowler,  Vol.  II.,  tit.  Will.  See  also  Hatliaway  v.  Barrow,  1  Camp. 
151,  where  Sir  J.  Mansfield  held,  that  in  an  action  on  the  case  for  a  conspiracy, 
a  conviction  of  the  defendants  upon  an  indictment,  where  the  plaintiff  was  a 
witness,  was  not  evidence.  A  conviction  was  not  evidence  for  the  informer,, 
though  his  name  did  not  appear  on  the  face  of  the  proceedings :  Smith  v.  Rum- 
mens,  1  Campb.  9  ;  s.  p.  ruled  in  Hathaway  v.  Barrow  and  others,  1  Campb.  151 ; 
see  also  Burdon  v.  Browning,  1  Taunt.  520 ;  Richardson  v.  Williams,  12  Mod. 
319;  Gibson  V.  M'Carty,  Cas.  temp.  Hardw.  311  ;  Uillyard  v.  Grantham,  cited 
by  Lord  Hardwicke  in  Brownsword  v.  Edwards,  2  Ves.  246. 

'  4  East  572  ;  see  also  Bartlett  v.  Pickersgill,  4  East  577  ;  Burdon  v.  Browning, 

1  Taunt.  520. 

PGilb.  Law  of  Ev.  35;  B.  N.  P.  232,  233  ;  see  Lord  EUenborough's  observa- 
tions, Hudson  V.  Robinson,  4  M.  &  S.  479;  12  Mod.  339;  Hardr.  472;  11  St. 
Tr.  462;  Bac.  Abr.,  Ev.  F.      In  Blakemore  v.   The  Glamorganshire  Canal   Co., 

2  C,  M.  &  R.  139,  Parke,  B.,  observed  as  to  the  cases  cited,  that  the  judges,  in 
noticing  the  objection  to  the  reception  of  such  evidence,  that  the  verdict  might 
have  been  obtained  upon  the  evidence  of  the  party  seeking  to  avail  himself  of 
it,  were  only  assigning  one  reason  which  existed  in  the  particular  cases,  instead 
of  relying  on  the  generjil  principle.     An  estoppel  is  always  reciprocal :   Gaunt 


365  JUDICIAL     DOCUMENTS. 

father  was  acquitted  on  an  indictment  for  having  two  wives,  it  was 
teld  that  the  record  was  not  evidence  in  a  civil  case,  where  the 
validity  of  the  second  marriage  was  controverted. '^  On  this  ground 
it  is  asserted  in  BuUer's  Nisi  Prius,""  that  a  conviction  at  the  suit  of 
the  King  for  a  battery,  cannot  be  given  in  evidence  in  trespass  for  the 
same  battery. 

The  record  of  an  acquittal  or  conviction  upon  a  criminal  charge,  is 
r*^rfin  ^^  general  pleadable  in  bar,  or  conclusive  evidence  *upon 
another  indictment  or  other  proceeding  for  the  same  offence. 
The  parties  are  the  same  in  both,  and  no  one  ought  to  be  brought 
into  jeopardy  twice  for  the  same  charge.^  Upon  this  ground  it  has 
been  held,  that  a  person  who  had  killed  another  in  Spain,  and  had 
been  tried  and  acquitted  by  a  competent  tribunal  there,  could  not  be 
tried  again  here  for  the  same  offence.' 

From  the  nature  of  the  proceeding  an  acquittal  upon  an  indict- 
ment for  the  non-repair  of  a  road,  is  not  conclusive  evidence  upon  a 
subsequent  indictment  as  to  any  particular  point,  since  it  concludes 
nothing  as  to  the  general  liability,  but  only  shows  that  the  defendant 
was  not  liable  at  the  particular  time  laid  in  the  former  indictment." 
But  a  conviction  in  such  case  is  conclusive  as  to  the  liability,  unless 
fraud  can  be  shown.^  The  record  of  a  conviction  was  in  one  case 
said  to  be  conclusive  evidence  against  the  inhabitants  of  a  particular 
district  of  their  obligation  to  repair  a  road,  unless  they  can  show  that 
it  was  obtained  by  fraud.^     But  fraud  is  there  put  by  way  of  example 

V.  Wainman,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  69  ;  Gilb.  Law  of  Ev.  28  ;  B.  N.  P. 
232. 

■J  The  reason  assigned  for  this  is,  that  less  evidence  is  necessary  to  maintain 
the  action  than  to  attaint  the  criminal,  and  therefore  his  acquittal  was  no  argu- 
ment that  the  fact  was  true  :  Gilb.  Law  of  Ev.  33. 

"■  P.  233.  So  a  conviction  of  an  assault  before  a  magistrate,  on  the  informa- 
tion of  the  party  assaulted,  is  not  evidence  in  an  action  for  the  assault :  Smith 
V.  Rummcns,  1  Camp.  9  ;  see  also  Hathaway  v.  Barroio,  1  Camp.  151  ;  1  Taunt. 
520.  But  under  the  statute  9  Geo.  IV.  c.  31,  ss.  27,  29,  a  certificate  of  acquittal, 
or  the  conviction  and  paying  the  penalty  or  suffering  the  punishment,  vrill  bar 
the  action. 

*  4  Co.  40  ;  see  B.  N.  P.  243  ;  1  Sid.  325. 

*  Hutchinson's  case,  1  Show.  6 ;  B.  N.  P.  245 ;  see  Vol.  II.,  tit.  Foreign  Law. 
°  Gilb.  Law  of  Ev.  32 ;  B.  N.  P.  245  ;  R.  v.  Burbon  Inh.,  5  M.  &  S.  392 ;  per 

Lord  Kcnyon,  Bex  v.  St.  Pancras,  Peake,  C.  220. 

*  Although  a  conviction  in  a  court  of  criminal  jurisdiction  is  conclusive 
evidence  of  the  fact  if  it  come  collaterally  in  controversy  in  a  court  of  civil 
jurisdiction,  yet  an  acquittal  does  not  prove  the  revei-se,  because  it  does  not 
ascertain  the  facts :  per  Buller,  J.,  B.  N.  P.  245. 

y  R.  v.  St.  Fancras,  Peake,  C.  220.      Note,  that  Lord  Kenyon  held  it  in  the 


VERDICTS,  ETC.,  IN  CRIMINAL  CASES.        366 

only,^  for  as  against  the  parish  at  large  the  judgmont  is  inconclusive, 
if  the  defence  was  conducted  by  the  inhabitants  of  a  particular  dis- 
trict in  which  the  indicted  road  lay,  without  any  notice  to  the  rest  of 
the  *parish.^  So  upon  an  indictment  against  a  parish  con-  p^Q^7-i 
sisting  of  several  districts,  one  of  which  pleaded  a  custom  for  ^  -' 
the  inhabitants  of  each  of  the  three  districts  to  repair  their  own 
roads,  independently  of  each  other,  which  custom  was  traversed,  the 
prosecutor  having  upon  the  trial  proved  records  of  conviction  of  the 
parish  at  large  (upon  not  guilty  pleaded)  for  not  repairing  roads  lying 
in  the  particular  districts ;  the  defendants  were  permitted  to  adduce 
evidence  that  such  pleas  were  pleaded  without  their  knowledge.'' 

The  record  of  a  judgment  in  a  criminal  (as  in  all  other  cases),  is 
in  general  conclusive  evidence  as  to  the  fact  of  the  conviction  and 
judgment,  and  as  to  all  legal  consequences  resulting  from  it. 

A  judgment  in  a  criminal  proceeding  is  in  the  nature  of  a  judgment 
in  rem  ;  such  a  judgment  standing  unreversed  is  conclusive  evidence 
as  to  all  its  consequences,  although  with  some  exceptions.  Thus  an 
accessory  to  a  felony,  notwithstanding  the  judgment  against  his  prin- 
cipal, is  entitled  to  controvert  his  guilt.  In  this  case,  although  the 
conviction  of  the  principal  may  be  alleged  in  the  indictment  against 
the  accessory  ;"  it  is  in  effect  but  primd  facie  evidence.*^     But  this  is 

above  case  to  be  conclusive  on  an  indictment  against  another  parish.  The  ques- 
tion, however,  was  between  the  indicted  parish  and  the  parish  of  Islington,  the 
convicted  parish. 

^  See  the  note,  2  Saund.  159  (a) ;  see  also  R.  v.  Eardisland,  2  Camp.  494. 

*  Doug.  421,  3d  edit. ;  B.  v.  Townsend,  R.  v.  Leominster ;  see  2  AVms.  Saund. 
(a),  note. 

"  R.  V.  Eardisland,  2  Camp.  494. 

<=  But  in  R.  V.  Turner,  1  Moo.  C.  C.  347  ;  R.  v.  Ratdiffe,  1  Lew.  C.  C.  112; 
Keahle  v.  Payne,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  560  ;  it  is  stated  that  many  of  the 
judges  (all  the  judges  except  two  being  assembled)  were  of  opinion  that  the 
record  of  the  conviction  of  the  principal  would  not  be  evidence  of  the  fact, 
where  the  indictment  against  the  accessory  alleged  not  the  conviction  but  the 
guilt  of  the  principal.  And  on  principle  it  would  seem  to  be  evidence  only 
when  the  indictment  alleges  the  conviction  of  the  principal,  and  simply  to 
support  that  allegation.     See  note  (e),  infra. 

•*  Fost.  364,  365;  R.  v.  Smith,  Leach  288;  see  tit.  Accessory.  One  reason 
assigned  is,  that  the  witnesses  against  the  principal  may  be  dead,  or  cannot  be 
procured ;  but  the  main  reason  appears  to  be,  that  the  proceeding  is  in  rem,  and 
in  general  conclusive  against  all  the  world  as  to  all  the  consequences  of  the 
attaint.  In  Rex  v.  Blick,  4  C.  &  P.  (19  E.  C.  L.  R.)  377  ;  the  record  of  the  con- 
viction of  the  principal,  upoii  his  pleading  guilti/,  was  held  to  be  prima  facie 
evidence  of  the  theft  as  against  the  receiver. 


368  JUDICIAL     DOCUMENTS. 

perhaps  tlie  only  case  in  which  a  *judgraent  founded  on  a 
'-  -^  verdict  is  not  conclusive  as  to  the  attainder  of  the  principal." 
For  a  judgment  in  a  criminal  matter,  as  far  as  regards  all  the  conse- 
quences of  the  judgment,  is  binding  upon  all;  the  attainder  of  a 
criminal  is,  as  long  as  it  remains  in  force,  conclusive  upon  all  claim- 
ing from,  or  through  the  party  attainted/  And  a  conviction  of  a 
crime,  which  formerly  rendered  a  person  incompetent  as  a  witness,  was 
conclusive  against  all.^ 

Upon  the  same  grounds,  decisions  in  the  inferior  courts  of  justice,** 
convictions  by  magistrates,  and  indeed  all  other  legal  and  authorized 
adjudications — as,  for  instance,  sentences  of  expulsion  by  colleges,  or 
of  deprivation  by  visitors — are  evidence  to  establish  the  fact  that  such 
an  adjudication  has  taken  place,  and  all  the  legal  consequences  that 
may  be  derived  from  it. 

Amongst  these  legal  consequences  is  the  protection  of  any  party 
who  has  acted  in  a  judicial  capacity  within  the  limits  of  his  judicial 
authority.  In  order  to  insure  to  such  parties  this  protection  the 
law  declares  that  where  actions  are  brought  against  magistrates 
and  others,  in  consequence  of  what  has  been  done  under  a  convic- 
tion for  any  offence  within  their  jurisdiction,  the  proceedings 
themselves,  if  regular,  are  evidence  not  only  of  the  fact  of  the 
conviction,  but  of  the  fact  on  which  the  judgment  was  founded ; 
r*^fiQ1  ^^^  ^^^  plaintiff  is  not  at  liberty  to  controvert  *and  dis- 
prove it  by  evidence.'     In  an  action  for  trespass  and  false 

*  Qu.  whether  this  is  not  admitted  in  favorem  vitce,  for  it  is  not  necessary 
that  the  indictment  should  aver  the  guilt  of  the  principal:  Fost.  365.  It  is  suffi- 
cient to  allege  the  conviction  simply  :  see  Fost.  Disc.  3,  c.  2. 

'Where  it  is  founded  upon  a  verdict,  an  alienee  cannot  falsify  the  attainder: 
1  Hale  361 ;  2  Hawk.  c.  50,  s.  2. 

^  See  Witness. 

^  As  to  Bankruptcy  and  Insolvency  see  these  titles,  Vol.  II. 

1  Fuller  V.  Fotch,  Holt  287.  In  Wilson  v.  Weller,  1  B.  &  B.  (5  E.  C.  L.  R.) 
57,  it  was  held  that  a  magistrate's  order  for  the  payment  of  wages  to  a  servant, 
stating  a  complaint  upon  oath,  and  an  examination  on  oath,  precluded  the 
plaintiff,  in  replevin,  from  pleading,  in  bar  of  a  plea  of  cognizance,  that  the  com- 
plaint was  not  made  upon  oath.  What  judges  of  the  matter  have  adjudged  is 
not  traversable  :  per  Holt,  C.  J.,  in  Groenvelt  v.  Bnrwell,  Salk.  396.  But  if  a 
constable  commit  a  man  for  a  breach  of  the  peace,  his  power  is  traversable,  for 
he  is  not  a  judge  ;  he  acts  not  for  punishment,  but  for  safe  custody  :  Ibid.  If  a 
justice  of  the  peace  record  that,  upon  his  view,  as  a  force,  which  is  not  a  force, 
he  cannot  be  drawn  in  question  either  by  action  or  indictment:  12  Co.  25  ;  27 
Ass.  19;  Salk.  397.  Neither  an  indictment  nor  an  action  lies  against  a  judge 
for  what  he  does  judicially,  and  for  wliat  he  has  jurisdiction  to  do,  if  the  cir- 
cumstances warrant  it:  Hammond  v.  Jlowell,  1  Mod.  184  ;  2  Mod.  218 ;  Bushell'S 


CONVICTION     BY    JUSTICES.  369 

imprisonment,  the  defendant  gave  in  evidence  a  conviction  by  liim 
as  a  magistrate,  of  the  plaintiff,  for  unlawfully  returning  to  a  parish 
after  a  removal  from  it,  and  a  warrant,  reciting  the  conviction,  requir- 
ing the  keeper  of  the  house  of  correction  to  keep  him  to  hard  labor 
for  twenty-six  days;  and  Yates,  J.,  held  that  the  conviction  could 
not  be  controverted  in  evidence,  and  the  plaintiff  was  nonsuited.'' 
For  although  the  magistrate  may  have  formed  an  erroneous  judgment 
upon  the  facts,  that  is  properly  the  subject  of  an  appeal;  and  thene- 
fore,  where  an  appeal  lies,  no  action  can  be  maintained  till  the 
merits  have  been  heard,  and  the  conviction  quashed.^  Whenever  a 
magistrate  assumes  a  more  extensive  jurisdiction  than  belongs  to 
him,  he  is  liable  in  an  action  ;""  and  if  the  excess  of  jurisdiction  ap- 
pear on  the  face  of  the  proceedings  *the  conviction  cannot  ^ 
be  set  up  as  a  defence  to  the  action."  But  where  the  pro-  *-  ^ 
ceedings  are  regular  and  formal,  and  the  conviction  still  subsists,  the 
plaintiff  cannot  go  into  evidence  to  show  that  in  the  particular  case 

case,  Vaugh.  135  ;  1  H.  6,  64  ;  47  E.  3,  50 ;  Dicas  v.  Lord  Brougham,  1  M.  & 
Kob.  309  ;  sec  Vol.  II.,  tit.  Justices — Trespass. 

^  Strickland  v.  Ward,  7  T.  R.  633  ;  Holt  287  ;  Carth.  346 ;  Hardr.  478  ;  Cro. 
Car.  395  ;  1  Vent.  273  ;  1  B.  &  B.  (5  E.  C.  L.  R.)  432  ;  2  B.  &  Ad.  (22  E.  C.  L. 
R.)  408  ;  Cave  v.  Mountain,  1  M.  &  G.  (39  E.  C.  L.  R.)  257  ;  R.  v.  Bolton,  1  Q. 
B.  (41  E.  C.  L.  R.)  60. 

1  Fuller  V.  Fotch,  Holt  287;  7  T.  R.  631  ;  2  B.  &  P.  391  ;  12  East  81  •,  16  East 
21  ;  Baylis  v.  Strickland,  1  M.  &  G.  (39  E.  C.  L.  R.)  591. 

™  Crepjjs  V.  Burden,  Cowp.  640 ;  Gray  v.  Cockson,  16  East  21  ;  Hill  v.  Bate- 
man,  2  Str.  710  ;  Morgan  v.  Hughes,  2  T.  R.  225. 

°  But  now,  under  the  statute  11  &  12  Vict.  c.  44,  s.  2,  before  any  ac  ion  can  be 
maintained  for  any  act  done  in  the  matter  of  which  the  justice  has  not  jurisdiction 
or  in  which  he  has  exceeded  it,  the  conviction  must  have  been  quashed  on  appeal 
or  by  the  court  of  Q..  B.  And  no  action  can  be  brought,  even  for  anything  done 
under  a  warrant  which  has  been  followed  by  a  conviction  or  order,  until  the 
conviction  or  order  has  been  quashed.  If,  too,  the  conviction  or  order  be  con- 
firmed on  appeal,  no  action  (s.  6)  can  be  maintained  for  enforcing  it.  By  s.  3, 
also,  no  action  at  all  can  be  maintained  against  one  justice  for  issuing  a  warrant 
to  enforce  the  conviction  or  order  of  another  justice,  but  only  against  the  latter. 
And  upon  this  statute  see  Leary\.  Patrick,  19  L.  J.,  M.  C.  211;  Barton  v. 
Bricknell,  20  L.  J.,  M.  C.  1 ;  Pratt  v.  Parkinson,  20  L.  J.,  M.  C.  208.  For  instances 
in  which  magistrates  have  been  considered  to  exceed  their  jurisdiction,  see  Hill 
V.  Bateman,  2  Str.  710,  where  the  magistrate  committed  the  party  to  prison, 
although  he  had  effects  which  might  have  been  distrained  upon  ;  Groome  v. 
Forrester,  5  M.  &  S.  314,  where  an  overseer  was  committed  to  gaol  until  he  had 
given  up  all  and  every  the  books,  concerning  his  office  of  overseer,  belonging  to 
the  parish,  the  information  mentioning  one  specific  book  only  ;  Vol.  II.,  tit. 
Justices — Conviction. 


370  JUDICIAL     DOCUMENTS. 

the  defendant  had  no  jurisdiction."  Upon  trespass  brought  against 
justices,  they  proved  a  conviction  by  them  of  the  plaintiif  for  a  mis- 
demeanor in  his  service  as  an  apprentice.  The  plaintiff,  in  order  to 
rebut  this,  oifered  to  prove  that  the  indentures  had  previously  been 
avoided,  and  this  proof  being  rejected,  he  was  nonsuited.  Upon  mo- 
tion to  set  aside  the  nonsuit,  the  court  decided  that  upon  the  point  of 
jurisdiction  the  plaintiff  was  confined  to  such  objections  as  appeared  on 
the  face  of  the  conviction. p 

*Upon  the  same  principle,  it  has  been  held  that  upon  an 
L  ^  -J  indictment  for  assault  in  turning  the  prosecutor  out  of  a  col- 
lege, the  sentence  of  expulsion  is  conclusive  evidence  of  the  fact  of 
expulsion. "^  And  that  a  sentence  of  deprivation  by  a  visitor  of  a  col- 
lege, is  conclusive  evidence  of  the  fact  of  such  deprivation  in  an  action 
of  ejectment  for  one  of  the  college  estates.'  Such  sentences  are, 
however,  impeachable  for  want  of  jurisdiction.^ 

Tliirdlu,  the  admissibility  of  a  judgment,  decree,  or  verdict,  is  to 
be  considered,  where  the  proceeding  is,  as  it  is  technically  called, 
in  rem.  In  such  case  it  may  be  evidence  against  one  who  was  not 
a  party  to  the  suit,  and  Avho  does  not  claim  in  privity  with  a  party. 
This  happens  where  a  court  exercises  a  peculiar  jurisdiction,  Avhich 
enables  it  to  pronounce  on  the  nature  and  qualities  of  particular 
subject-matters  of  a  public  nature  and  interest,  independently  of  any 
private  party.' 

"  Graij  V.  Cookson,  16  East  21  ;  see  also  Mann  v.  Davers,  3  B.  &  A.  (5  E.  C. 
L.  R.)  103  ;  Taylor  y.  Clemson,  2  Q.  B.  (42  E.  C.  L.  R.)  1025;  Mould  v.  Wil- 
liams, 5  Q.  B.  (48  E.  C.  L.  R.)  469 :  and  1  M.  &  G.  (39  E.  C.  L.  R.)  591. 

P  Gray  v.  Cookson.  A  warrant  of  commitment  for  an  offence  summarily 
punishable  is  no  evidence  of  a  fact  recited  in  it,  altliough  necessary  to  give 
jurisdiction  :  Stevens  v.  Clarke,  2  M.  &  Rob.  435.  If  the  warrant  were  in  effect 
a  conviction,  it  would  be  otherwise:  R.  v.  Richards,  5  Q.  B.  (48  E.  C.  L.  R.) 
926. 

"^R.v.  Griindon,  Co-WTp.  315.  See  the  principle,  Reg.  v.  Governors  of  Dar- 
lingion  School,  6  Q.  B.  (51  E.  C.  L.  R.)  682. 

'  rhillips  y.  Bury,  Skinn.  447  ;  2  T.  R.  346 ;  1  Ld.  Raym.  5 ;  and  see  Dr. 
Patrick's  case,!  Lev.  65;  Case  of  Neic  College,'!  Lev.  14:  Dr.  Widdrington' s 
case,  1  Lev.  23;  7t'.  v.  Bishop  of  Chester,  1  W.  BL  22;  Rex  v.  Bishop  of  Ely, 
Ibid.  71. 

"Doe  v.  Haddon,  3  Doug.  (26  E.  C.  L.  R.)  310.  So,  although  the  sentences  of 
courts  martial  arc  conclusive  in  actions  at  law,  yet  the  courts  of  law  will 
examine  wliether  they  have  exceeded  tlicir  jurisdiction  :  Case  of  the  Ship 
Bounty,  1  East  313  ;  Grant  v.  Gould,  2  II.  Bl.  69  ;  Stratford's  case,  1  East  313  ; 
and  see  the  Mutiny  Acts. 

'  A  cominission  of  bankruptcy  is  a  proceeding  to  which  all  the  world  are 
parties :  per  Lord  Ellcnborough  in  Gervis  v.  Grand  Western  Canal  Co.,  5  M.  & 


JUDGMENTS     IN    REM — SPIRITUAL     COURT.  371 

This  class  cDmprehends  cases  relating  to  marriage  and  bastardy, 
where  the  Ordinary  has  certified;  sentences  relating  to  marriage  and 
testamentary  matters  in  the  Spiritual  Court ;  decisions  of  Courts  of 
Admiralty,  judgments  of  condemnation  in  the  Exchequer  ;  and  adju- 
dications upon  questions  of  settlement."  The  general  rule  *is  r;j<o7.7-| 
that  such  a  judgment,  sentence,  or  decree,  provided  it  be 
final  in  the  court  in  which  it  was  pronounced,  is  evidence  against  all 
the  world,  unless  it  can  be  impeached  on  the  ground  of  fraud  or  col- 
lusion.'' This  seems  to  be  built  upon  one  or  both  of  the  following  con- 
siderations: first,  because  it  is  essential  to  the  practical  efficacy  of 
such  a  jurisdiction  that  its  judi?ments  should  be  binding  in  all  courts; 
secondly,  because  all  who  are  interested  in  the  result  may  usually  be- 
come parties  to  the  proceeding. 

In  the  first  place  it  is  evidently  essential  to  the  exercise  of  a 
jurisdiction  of  this  nature  that  its  adjudications  upon  the  subject- 
matter  should  be  final,  not  only  in  the  courts  in  Avliich  they  are  pro- 
nounced, but  in  all  other  courts  where  the  same  question  arises.  It 
would  not  only  be  inconsistent  that  the  decision  in  rem  should  not  be 
final  in  the  court  in  which  it  is  pronounced,  but,  from  the  nature  of 
the  subject-matter,  mischievous  and  inconvenient.  Although  the  par- 
ties who  are  in  a  greater  or  less  degree  affected  by  the  consequences 
of  the  judgment  may  change,  the  subject-matter  is  immutable,  and 
therefore  the  decision  upon  it  ought  not  to  be  liable  to  be  disturbed. 
And  it  ought  to  be  binding  in  other  courts,  in  order  to  prevent  in- 
consistency, and  to  support  the  jurisdiction  of  the  court  in  which 
that  sentence  has  been  pronounced ;  for  it  would  be  in  vain  for  a 
court,  like  those  enumerated,  of  exclusive  jurisdiction  to  decide,  if  its 
decisions  upon  the  subject-matter  were  to  be  wholly  disregarded. 

Secondly,  in  general  all  parties  really  interested  in  the  proceed- 
ing in  rem  may  usually  be  heard  in  assertion  of  their  rights. 
Where  a  question  of  marriage  or  bastardy  arises  in  the  courts  of 
common  law,  the  certificate  of  the  bishop,  when  returned  and 
entered  of  record,  is  binding,  not  only  on  the  parties  to  that  suit, 
but  upon  all  other  litigating  parties  between  whom  the  same  point 
arises.^     But  in  cases  of  bastardy,  the  stat.  9   Hen.  VI.,  c.  11,  spe- 

S.  78.  The  determination  of  the  Privy  Council  to  advise  the  Crown  to  grant  a 
petition  for  a  charter  under  l*Vict.  c.  76,  s.  49,  is  not  conclusive  as  to  its  validity  ; 
llutter  V.  Chapman^  8  M.  &  W.  1. 

"  R.  V.  Phillips,  8  Q.  B.  (55  E.  C.  L.  R.)  745. 

*B.  N.  P.  244;  11  St.  Tr.  262. 

y  B.  N.  P.  245 ;  11  St.  Tr.  261  ;  2  Wils.  128 ;  3  Bl.  Com.  335. 


373  JUDICIAL     DOCUMENTS. 

r*o''Qi  cially  *provi(les  that  before  any  writ  of  certificate  shall  pass 
L  -•  out  of  the  court  to  the  Ordinary,  a  remembrance,  reciting 
the  issue  joined,  shall  be  certified  to  the  chancellor,  and  that  there- 
upon proclamation  shall  be  made  in  Chancery  by  three  months,  once 
in  every  month,  to  the  intent  that  all  persons,  pretending  any 
interest  to  object  against  the  party  which  pretendeth  himself  to  be 
mulier,  be  before  the  Ordinary,  to  make  their  allegations  and  objec- 
tions, as  the  law  of  the  holy  church  requireth.  Now,  although  the 
immediate  object  of  this  statute  was  to  ensure  a  greater  degree  of 
publicity,  yet  it  is  to  be  observed,  that  it  did  not  aifect  the  proceeding 
before  the  Ordinary,  but  assumed  that  fill  who  are  interested  will  be 
allowed  to  offer  their  allegations  before  him.  Whence,  perhaps,  it 
may  be  inferred,  that  in  all  such  cases  any  party  interested  is  en- 
titled to  insist  upon  his  objections  before  the  Ordinary.  With 
respect  to  the  proceedings  upon  an  original  suit  in  the  Exchequer, 
relating  to  the  seizure  and  condemnation  of  goods, "^  and  also  to  suits 
in  the  Spiritual  Courts  and  Courts  of  Admiralty,  it  must  be  presumed 
that,  before  they  proceed  to  pass  a  final  decree  or  sentence,  such 
reasonable  notice  has  been  given  as  the  justice  of  the  case  requires. 
In  conformity  with  these  principles,  it  has  been  held  that  the 
certificate  of  the  Ordinary,  when  returned  to  the  Temporal  Court, 
is   conclusive  upon     all    parties,*   as    regards    civil   rights  at   least,*" 

'  In  an  action  for  goods  sold,  the  defendant  pleaded  that  the  goods,  which 
were  sweet  spirits  of  nitre,  had  been  compounded  of  spirits  illegally  distilled 
and  were  seized  while  in  his  possession  by  the  excise,  and  that  an  officer  having 
informed  the  Barons,  and  prayed  condemnation,  it  was  adjudged  by  the  Barons 
that  they  should  be  forfeited.  This  plea  was  held  insufficient,  it  being  very 
questionable  whether  the  spirits,  when  so  compounded,  were  liable  to  forfeiture, 
and  it  not  appearing  that  the  vendor  had  notice  of  the  seizure,  or  was  called 
upon  to  protect  the  property :  Bailey  v.  Harris,  12  Q.  B.  (64  E.  C.  L.  R.)  905. 

»  B.  N.  P.  245 ;  2  Wils.  128  ;  11  St.  Tr.  261  ;  Fitz.  Estopp.  282 ;  li.  v.  Rhodes, 
Leach  24. 

^  As  to  the  effect  of  such  a  judgment  in  a  criminal  case  the  law  is  thus 
stated,  by  De  Grey,  C.  J.,  in  The  Duchess  of  Kingston's  case:  "  Proceedings  in 
matters  of  crime,  and  especially  of  felony,  fall  under  a  diiferent  consideration 
from  civil  suits,  first,  because  the  parties  are  not  the  same  ;  for  the  King,  in 
whom  the  trust  of  prosecuting  public  offences  is  vested,  and  which  is  executed 
by  his  immediate  orders,  or  in  his  name  by  some  prosecutor,  is  no  party  to  such 
proceedings  in  the  Ecclesiastical  Courts,  and  cannot  be  admitted  to  defend  or 
examine  witnesses,  or  in  any  manner  intervene  or  appeal ;  secondly,  such  doc- 
trines would  tend  to  give  the  Spiritual  Courts,  which  are  not  permitted  to  exer- 
cise any  judicial  cognizance  in  matters  of  crime,  an  immediate  influence  in 
trials  for  offences,  and  to  draw  the  decision  from  the  course  of  the  common  law, 
to  which  it  solely  and  peculiarly  belongs.     The  ground  of  the  judicial  powers 


JUDGMENTS     IN     REM — SPIRITUAL     COURT.  374 

r*'^74-"l    ^P^"^  questions  of  bastardy  and  *marriage.     So  the  grant  of 
a  probate  in  the  Spiritual  Court  is  conclusive  evidence  against 
all  as  to  the  title  to  personalty,  and  to  all  rights  incident  to  the  char- 
acter  of  an    executor   or  administrator.*^     So   is  a  sentence   in  the 

given  to  the  Ecclesiastical  Courts  is  merely  of  a  spiritual  consideration,  pro 
correctione  morum  et  pro  salute  animce.  They  are  therefore  addressed  to  the 
conscience  of  the  party.  But  one  great  object  of  the  temporal  jurisdiction  is 
the  public  peace,  and  crimes  against  the  public  peace  are  wholly  and  in  all 
their  parts  of  temporal  cognizance  alone.  A  felony  by  common  law  was  also 
so.  A  felony  by  statute  became  so  at  the  moment  of  its  institution.  The  Tem- 
poral Courts  alone  can  expound  the  law  and  judge  of  the  crime  and  its  proofs ; 
in  doing  so  they  must  see  with  their  own  eyes,  and  try  by  their  own  rules,  that 
is,  by  the  common  law  ;  it  is  the  trust  and  sworn  duty  of  their  office." 

It  is  observable  that  in  The  Duchess  of  Kingston  s  case,  the  judgment  given 
in  evidence  was  not  a  judgment  in  rem.  It  has.  however,  been  seen  that  upon 
an  indictment  against  one  as  accessory  to  a  felony,  the  conviction  of  the  princi- 
pal, although  in  other  respects  conclusive  as  to  his  attainder,  is  at  most  but 
prima  facie  evidence  against  the  accessory.  The  rule,  therefore,  as  laid  down 
by  C.  J.  De  Grey,  may  perhaps  in  like  manner  be  regarded  as  an  exception  in 
favorem  vitce,  on  the  same  footing  with  the  case  of  the  accessory,  without  further 
impeaching  the  accuracy  of  that  part  of  the  judgment.  See  further  on  this 
subject.  Vol.  II.,  tit.  Polygamy. 

«  Roll.  Abr.  638  ;  4  T.  R.  258 ;  11  St.  Tr.  218  ;  3  T.  R.  130 ;  Roll.  Abr.  678  ; 
Noel  V.  Wells,  1  Lev.  235  ;  1  Ld.  Raym.  262.  Even  in  an  indictment  for  perjury, 
to  prove  that  A.  made  his  will  and  appointed  B.  his  executor,  although  the  will 
applied  as  well  to  real  as  to  personal  property:  R.  v.  Turner,  2  C.  &  K.  (61  E. 
C.  L.  R.)  732.  Payment  of  money  to  an  executor  who  has  obtained  probate  of 
a  forged  will,  is  a  discharge  to  the  debtor  of  an  intestate:  Allen  v.  Dundas,  3  T. 
R.  125. 

'  The  English  doctrine,  that  a  probate  of  a  will  is  conclusive  only  as  to  personal 
property,  rests  on  the  ground  that  the  Ecclesiastical  Courts  have  no  jurisdiction 
of  real  property:  see  1  Gall.  623  ;  10  Wheat.  468,  and  cases  cited  1  Pick.  241. 
But  in  all  the  Now  England  States,  in  Pennsylvania  and  North  Carolina,  and 
probably  in  some  other  States,  the  probate  courts  have  jurisdiction  of  wills  in 
respect  to  property  both  personal  and  real.  And  it  has  been  decided  in 
Connecticut,  Massachusetts  and  North  Carolina,  that  the  probate  of  a  will  is 
conclusive  with  regard  to  lands  devised,  as  it  is  with  regard  to  chattels  :  Bush 
V.  Sheldon,  1  Day  170 ;  Judson  et  ux.  v.  Lake,  3  Day  318  ;  Dublin  v.  Chadboiirne, 
16  Mass.  433  ;  Stanley  v.  Kean,  Tayl.  93.  In  Rhode  Island  the  probate  was 
formerly  considered  conclusive  only  as  to  personal  property  ;  but  in  Spencer  et 
nx.  V.  Spencer,  1  Gall.  622,  Mr.  Justice  Story  intimated  very  clearly  that  this 
was  erroneous  and  ought  to  be  corrected :  see  also  Smith  v.  Fenner,  1  Gall.  171, 
174.  In  Pennsylvania,  however,  the  probate  although  conclusive  as  to  the 
personalty  was  held  to  be  only  prima  facie  evidence  as  to  the  realty ;  and 
the  party  who  is  dissatisfied  may  have  the  title  tried  in  ejectment:  Coates  v. 
Hughes,  3  Binn.  498  ;  Spangler  v.  Rambler,  4  S.  &  R.  193  :  Logan  v.  Watt  et  al., 
5  S.  &  R.  212.  The  law  of  Maryland,  as  to  evidence  of  the  probate  of  a  will  of 
23 


375  JUDICIAL     DOCUMENTS. 

i-^qyr-i  *Spiritual  Court  of  nullity  of  marriage/  when  the  decision 
in  the  court  itself  is  direct  and  final.  Accordingly,  where 
the  wife,  de  facto,  of  T.  was  libelled  in  the  Spiritual  Court  by  J.  S. 
for  divorce  on  the  ground  of  a  pre-contract  with  him,  upon  which  the 
court  dissolved  the  marriage,  although  T.,  the  husband  de  facto,  was 
no  party  to  the  suit,  it  was  held  that  he  was  bound  by  the  sentence, 
and  that  the  issue  of  the  second  marriage  of  the  wife  with  J.  S.  was 
legitimate.®  ^  So  where  (7.  K.  had  issue  M.  K.  by  C.  S.  his  wife  de 
facto,  and  after  a  sentence  of  nullity  of  marriage,  0.  K.  married 
F.,  and  they  had  issue  E.  K.,  it  was  held,  upon  the  death  of  C.  K., 
that  so  long  as  the  sentence  of  nullity  stood  unreversed,  M.  K.,  the 

^  Bunting  v.  Lepingwell,  4  Co.  29  ;  Kenn^s  case,  7  Co.  41 ;  Hatfield  v.  Hatfield, 
Str.  961  ;  Da  Costa  v.  Villa  Real,  Ibid.  ;  Jones  v.  Boiv,  Carth.  225  ;  Hervey^s 
case,  20  How.  St.  Tr.  395. 

^  Bunting  v.  Lepingwell,  4  Co.  29. 

lands,  in  an  action  of  ejectment  is  the  same  with  the  common  law  of  England : 
Smith's  Lessee  \.  Steele,  1  Har.  &  McIIen.  419;  Darbi/^s  Lessee  v.  Mayer  et  al., 
10  Wheat.  470.  So  also  as  it  seems  is  the  law  of  South  Carolina:  see  Howell  v. 
House,  2  Rep.  Const.  Ct.  80.  In  Massachusetts,  the  filing  and  recording  in  a 
probate  court  of  that  State,  of  a  copy  of  a  will  originally  proved  and  allowed  in 
any  other  State  or  country,  according  to  the  provisions  of  stat.  1785,  c.  12,  is  of 
the  same  force  and  effect  as  if  the  original  will  had  been  there  :  Dublin  v. 
Chadbourne,  ubi  sup.  In  Kentucky,  a  will  not  proved  and  recorded  there,  has 
been  held  not  be,  as  such,  admissible  evidence  for  a  devisee,  though  it  has  been 
proved  and  recorded  in  another  State  :  Carmichal  v.  Elmendorf,  4  Bibb  484 ; 
Morgan  v.  Gaines,  3  Marsh.  614.  Such  will,  however,  has  been  there  admitted 
in  evidence  as  an  unrecorded  deed,  upon  proof  of  the  requisites  of  a  good  will 
under  the  statute  of  that  State  :  Hood  v.  Mathers,  2  Marsh.  555  •,  Bowman  v. 
Bartlett,  3  Marsh.  69;  and  see  Elmendorf  \.  Carmichal,  3  Litt.  479.  In  Ten- 
nessee, the  probate  of  a  will  of  lands  in  another  State  is  not  evidence  in  an 
ejectment  for  lands  in  Tennessee :  Darbfs  Lessee  v.  Mayer  et  al.,  ubi  sup.  A 
statute  of  the  State  of  New  York  provides  a  mode  of  proving  and  recording  wills 
in  the  Supreme  Court  or  a  Court  of  Common  Pleas,  and  makes  a  transcript  of 
the  record,  certified  by  the  clerk  and  sealed  with  the  seal  of  the  court,  as 
effectual  in  all  cases  as  the  original  will.  But  such  proof  and  record  have  been 
held  not  to  be  conclusive  upon  the  heir,  who  may  still  impeach  the  validity  of 
the  will :  Jackson  v.  Itumsey,  3  Johns.  Cas.  234  ;  1  Phil.  Ev.  434  ;  note  to  3d 
Amer.  ed.  M. 

'  If  a  husband  leave  his  wife  or  a  wife  her  husband,  and  remove  into  another 
State  for  the  purpose  of  obtaining  a  divorce,  and  a  divorce  is  there  decreed  on 
grounds  which  would  not  authorize  it  by  the  law  of  the  State  where  the 
marriage  was  contracted  and  the  parties  cohabited  ;  such  decree  is  void  in 
the  latter  State,  and  will  ])c  treated  as  a  nullity,  whether  the  question  arises 
collaterally  or  in  a  suit  by  the  wife  to  enforce  the  allowance  of  alimony:  Jack- 
son v.  Jar.k.vm,  I  .Johns.  424;  Borden  v.  Fitch,  15  Johns.  121;  Hanover  v. 
Turner,  14  Mass.  227  ;  see  also  Barber  v.  Roof,  10  Mass.  260.  M. 


JUDGMENTS     IN     REM — SPIRITUAL     COURT.  375 

issue  of  the  first  marriage,  was  a  bastard/  Although  neither  the 
sentence  of  a  Spiritual  Court,  nor  of  any  other  court,  can  be  evi- 
dence upon  a  subject  beyond  its  jurisdiction,^  yet  if  the  matter  be 
within  its  jurisdiction,  it  is  evidence  to  all  purposes,  although  not 
within  the  jurisdiction.  Therefore,  in  an  action  of  trespass,  a  sen- 
tence of  deprivation  in  the  Spiritual  Court,  on  the  ground  of  simony, 
was  allowed  to  be  read,  notwithstanding  the  objection  taken  that  a 
freehold  interest  of  the  plaintiff  ought  not  to  be  concluded  by  what 
was  done  in  the  Spiritual  Court.  For  the  court  said  that  the  Spir- 
itual Court  did  not  oust  him  of  his  freehold,  but  the  ouster  was  the 
consequence  of  the  sentence.'' 

Sentence  in  a  jactitation  suit,  as  it  seems,  is  not  admissible  evi- 
dence of  marriage  in  a  Temporal  Court,  unless  it  be  *be-  r^co-p-i 
tween  the  same  parties ;'  at  all  events  it  is  not  conclusive. 
In  Jones  v.  Bow^  where  the  plaintiff  in  ejectment  claimed  through 
the  issue  of  Robert  Oarr  and  Isabella  Jones,  it  was  held  that  a  sen- 
tence in  the  Arches  in  a  jactatition  suit,  by  which  it  was  decreed 
that  there  was  no  marriage  between  them,  was  a  conclusive  bar  to 
the  plaintiff,  and  estopped  him  from  going  into  any  proof  of  mar- 
riage, unless  he  could  show  that  the  sentence  had  been  repealed. 
The  decision,  however,  is  open  to  the  objection  that  in  a  jactitation 
suit  the  question  of  marriage  arises  collaterally  and  not  directly,  and 
that  it  is  not  final.  In  the  case  of  Hiliard  v.  Phaly,^  it  was  held, 
that  proceedings  in  the  Spiritual  Court  against  the  father  for  incon- 
tinency  with  the  mother,  could  not  be  given  in  evidence  against  a 
child  of  the  marriage  claiming  by  descent  from  the  father.""  And 
certainly  such  evidence  could  not  be  considered  as  conclusive,  be- 
cause the  marriage  was  not  directly  in  issue.     In  BlackJiam  s  case^ 

'  Kenn's  case,  7  Co.  41. 

e  Betsworthv.  Betsworth,  Sty.  10;  12  Vin.  Abr.  128, 

"  Phillips  v.  Craicley,  Freem.  84,  pi.  103  ;  12  Vin.  Abr.  128.  Note,  the  court 
would  not  allow  the  proofs  in  the  Spiritual  Court  to  be  read,  because  it  was  not 
a  court  of  record. 

'  Infra,  p.  378,  note  [s). 

"  Carth.  225,  226  ;  12  Vin.  Abr.  128. 

'  8  Mod.  180. 

"  The  reason  which  is  assigned  is,  that  such  proceedings  could  not  affect  the 
title  to  lands.  King,  Lord  Chancellor,  thought  that  the  sentence  in  the  Spiritual 
Court  carried  on  in  a  regular  suit,  and  in  the  lifetime  of  the  parties,  that  they 
were  guilty  of  foi'nication,  and  the  payment  of  commutation  money  by  the 
father,  was  strong  evidence  to  show  that  there  was  no  marriage,  and  he  thought 
it  hard  that  it  should  be  excluded. 

°  1  Salk.  290. 


376  JUDICIAL    DOCUMENTS. 

it  was  expressly  held,  that  although  a  matter  directly  decided  by 
the  Spiritual  Court  could  not  be  controverted,  yet  that  the  rule  did 
not  extend  to  any  collateral  matter  to  be  inferred  from  their  sentence. 
A  jactitation  suit  is  founded  merely  on  a  supposed  defamation, 
and  involves  no  matrimonial  question,  unless  the  defendant  plead  a 
marriage ;  and  whether  it  continues  a  matrimonial  cause  throughout, 
or  ceases  to  be  so  on  failure  of  proving  a  marriage,  still  the  sen- 
tence has  only  a  negative  and  qualified  effect,  viz.,  that  the  party 
r*Q77i  ^^^  failed  in  *his  proof,  and  that  the  libellant  is  free  from 
matrmionial  contract,  as  tar  as  yet  appears,  leaving  it  open 
to  new  proofs  of  the  same  marriage  in  the  same  cause,  or  to  any 
other  proofs  of  that  or  any  other  marriage  in  another  cause.  And 
if  such  sentence  is  no  plea  to  a  new  suit  in  the  Ecclesiastical  Court, 
and  is  not  conclusive  there,  it  cannot  conclude  another  court  which 
receives  the  sentence  from  going  into  new  proofs  to  make  out  that 
or  any  other  marriage."  The  sentence  in  a  jactitation  suit  is,  there- 
fore, neither  a  direct  nor  a  conclusive  sentence  as  to  any  marriage: 
consequently,  as  it  is  not  a  proceeding  m  rem,  it  appears  on  gene- 
ral principles  to  be  inadmissible  evidence  to  prove  or  disprove  a 
marriage  in  a  proceeding  in  any  other  court.  In  Tlie  Duchess  of 
Kingston  s  case,  where  such  a  sentence  was  offered  by  the  defendant 
on  a  charge  of  polygamy  to  disprove  the  first  marriage,  the  judges 
held  that  such  a  sentence,  even  admitting  it  to  be  evidence  at  all  in 
a  criminal  proceeding,  was  not  conclusive  evidence,  and  that  at  all 
events  its  effects  might  be  avoided  by  proof  of  fraud  or  collusion.^ 
In  the  case  of  Bobins  v.  Cruchlei/,  the  plaintiff  having  brought  a  writ 
of  dower,  the  defendants  pleaded  ne  unqiies  aeeouple  ;  the  replication 
alleged  that  Sir  W.  Wolseley  libelled  the  plaintiff  in  the  Spiritual 
Court,  as  his  wife,  charging  her  with  adultery  with  Robins  (as  whose 
widow  she  claimed),  and  praying  a  divorce ;  and  that  she  pleaded 
that  she  was  the  wife  of  Robins,  and  then  set  forth  the  sentence  of 
the  court  that  she  was  the  wife  of  Robins.  The  defendants  demur- 
red ;  and  after  two  arguments,  the  court  held  the  plea  to  be  bad ; 
and  this  judgment  seems  to  have  been  founded  not  merely  on  the  con- 
sideration that  the  bishop  could  not  be  ousted  of  his  jurisdiction  by 
this  plea,  but  also  on  the  ground  that  such  a  decree  could  not  be 
pleaded  in  bar  at  all  against  a  stranger.      Willes,    C.  J.,    said,'^  no  de- 

»2()  llnw.  St.  Tr.  355. 

P  R.  V.  JJufhe.is  of  Kingston,  20  IIow.  St.  Tr.  355.      As  to  the  construction  of 
Htatiite  1  Jac.  I.  c.  11,  sec  Polyuamy. 
')  '1  WilH.  1124. 


JUDGMENTS  IN  REM — EXCHEQUER.  S78 

terminations  in  the  high  courts  *touching  lands  shall  bind  r*o'-o-i 
strangers  ;  much  less  ought  a  sentence  in  the  Spiritual 
Court,  to  which  Mr.  Robins  was  no  party,  to  bind  his  heirs.  And 
Clive,  J.,  said,'  "  Robins  was  no  party  to  the  suit ;  and  why  the  sen- 
tence should  bind  his  heirs  I  cannot  conceive  ;  it  is  mere  matter  of 
evidence."*  So  upon  an  indictment  for  forging  a  will,  it  may  be 
now  proved  that  the  will  was  a  forgery,  notwithstanding  the  probate,' 
although  the  contrary  was  once  held." 

So  a  judgment  of  condemnation  in  the  Exchequer  is  conclusive 
upon  all,''  not  only  as  to  the  right  of  the  Crown  to  the  condemned 
property,  but  also  in  justification  of  the  officer  who  seized  it,  where 
the  only  question  is,  whether  it  was  forfeited  or  not.^  But  a  convic- 
tion in  a  penalty  for  adulterating  spirits,  which  does  not  operate  in 
rem,  is  not  evidence  between  other  parties.  Such  a  conviction  is  not 
evidence  for  the  defendant  in  an  action  for  the  price  af  spirits  sold, 
in  proof  of  their  adulteration,''  and  is  not  evidence  of  the  facts  stated 
on  another  charge  in  respect  of  the  same  goods,  founded  on  *a 
different  statute.^  In  the  case  of  Cook  v.  Sholl,^  indeed.  Lord  ^  ^ 
Kenyon  expressed  an  opinion,  that  an  acquittal  in  the  Court  of  Ex- 
chequer, upon  a  seizure  made  for  want  of  a   permit,  was  conclusive 

'  2  Wils.  124. 

'  It  was  intimated  by  Willes,  C.  J.,  and  Bathurst,  J.,  that  the  sentence  was 
not  conclusive,  because  it  was  not  final  even  between  the  parties,  who  might 
(according  to  Oughton)  at  any  time  apply  to  have  it  reversed;  and  that  the 
court  would  not  be  bound  by  the  sentence  of  a  Spiritual  Court,  which  was  not 
binding  even  in  that  court.  Note  also,  the  court  said,  that  the  sentence  might 
possibly  be  evidence  before  the  bishop. 

'  jB.  v.  Buttery  and  another,  Old  Bailey,  May  6  1818;  R.  v.  Gibson,  Lane. 
Summer  Ass.  1802,  cor.  Lord  Ellenborough  ;  2  Pothier,  by  Evans,  356. 

"^.  V.  Vincent,  Str.  481. 

^  Scott  V.  Shearman,  Bl.  977  ;  11  St.  Tr.  218.  See  ^jer  Lord  Kenyon,  Geyer 
V.  Aguilar,  7  T.  R.  696 ;  Evans's  Observations,  2  Pothier  356. 

y  Ibid.  And  gHcej-e,  Whether  such  a  condemnation  is  conclusive  against  third 
persons,  save  as  to  the  fact  that  the  goods  are  forfeited,  and  even  then  if  the 
judgment  be  by  default?  Bailey  v.  Harris,  12  Q.  B.  (64  E.  C.  L.  R.)  905.  If 
the  ground  of  condemnation  be  illegal  on  the  face  of  it,  the  judgment  is  not 
conclusive :  Ibid. 

*  Hart  V.  Macnamara,  cor.  Gibbs,  C.  J.,  4  Price  154.  See  also  5  Price  195  ; 
and  Bailey  v.  Harris,  ante,  p.  373,  note  (z). 

'^  Attorney- Gen.  v.  King,  5  Price  195. 

^  5  T.  R.  255.  The  question  reserved  upon  the  trial  being  upon  the  construc- 
tion of  the  permit,  and  not  on  the  point  whether  the  determination  in  the  Ex- 
chequer was  conclusive,  a  verdict  was  entered  for  the  defendant.  And  see  12 
Vin.  Abr.,  A.  b.  22. 


379  JUDICIAL     DOCUMENTS. 

evidence  in  an  action  for  the  seizure,  that  the  permit  was  regular,  and 
precluded  all  question  upon  the  construction  of  the  permit.  It  is, 
however,  observable,  that  the  case  was  decided  on  a  collateral  ground, 
and  that  on  the  second  mention  of  the  case  the  court  seemed  to  think 
that  question  open  to  discussion,  and  wished  the  parties  would  consent 
to  have  it  put  upon  the  record. '^  ^ 

It  has  been  seen  that  a  condemnation  bj  commissioners  of  excise  is 
final. "^  Although  in  one  case  this  was  doubted.  So  the  judgment  of 
commissioners  of  taxes  on  an  appeal,  is  final  in  an  action  of  trespass 
against  the  officer  for  levying.® 

A  conviction  in  rem  is  evidence,  although  obtained  by  the  evidence 
of  the  very  party  who  seeks  to  use  it.^ 

Inquisitions  of  lunacy  are  admissible  but  not  conclusive  evidence 
when  the  question  is  as  to  the  state  of  the  party's  mind.^ 
L         J        *Upon  the  same  principles,^  adjudications  in  the  Courts 

'  Supra,  note  (6).  A  mere  acquittal,  it  has  been  seen  {s^ipra,  p.  361),  stands 
on  a  very  different  footing  as  to  its  effect  in  evidence  from  a  conviction  ;  it  may 
have  resulted  from  collateral  causes,  independent  of  the  merits ;  and  in  such  a 
case  it  may  be  doubted  whether  the  general  principle,  that  a  man  is  not  to  be 
concluded  by  a  proceeding  to  which  he  was  no  party,  is  superseded  by  the 
peculiar  principles  which  give  effect  to  judgments  in  rem. 

*  Supra,  p.  348,  Fuller  v.  Fotch,  Carth.  346.  And  see  Terri/  v.  Huntington, 
Hardr.  483;  Lane  v.  Hegberg,  B.  N.  P.  19:  Brown  y .  Bullen,  1  Doug.  407  ; 
Radnor  v.  Beave,  2  B.  &  P.  391  ;  Henshaw  v.  Fleasance,  2  Bl.  1174. 

«  Patchett  V.  Bancroft  and  others,  7  T.  R.  367  ;  B.  N.  P.  244.  See  also,  5  Price 
202. 

'Davis  V.  Nest,  6  C.  &  P.  (25  E.  C.  L.  R.)  167. 

^  In  debt  on  bond  against  executors  of  obligor,  an  inquisition  finding  that  the 
testator  was  a  lunatic,  without  lucid  intervals,  at  the  period  of  the  execution  of 
the  bond,  is  admissible,  though  not  conclusive  evidence :  Faulder  v.  Silk,  3 
Camp.  126 ;  Frank  v.  Frank,  2  M.  &  Rob.  314 ;  see  also  Surgeson  v.  Sealy,  2 
Atk.  412.     Vol.  II.,  tit.  Wills. 

•"  "  From  the  time  of  Lord  Hale  down  to  the  present  period,  it  has  been 
clearly  settled  that  a  sentence  of  condemnation  in  the  Court  of  Admiralty, 
where  it  proceeds  on  the  ground  of  enemy's  property,  is  conclusive  that  the 
property  belongs  to  enemies,  and  not  only  for  the  immediate  purpose  of  such 
sentence,  but  is  binding  in  all  courts  and  against  all  persons.  The  sentence  of 
the  Court  of  Admiralty  proceeding  in  rem  must  bind  all  parties,  must  bind  all 

'  So  a  decree  of  restitution  in  the  District  CoQrt  of  the  United  States,  of  a 
vessel  which  had  been  seized  by  revenue  officers,  is  conclusive  evidence,  in  an 
action  by  the  owner  against  the  ofScers,  that  the  seizure  was  illegal:  Galston  et 
uL  v.  Hoj/l,  13  Johns.  561  ;  3  Wheat.  246.  There  is  no  distinction  as  to  the 
conclusivcnehs  of  a  sentence  operating  in  rem  between  a  condemnation  and  an 
ac'juittal ;  the  rule  of  evidence  is  reciprocal :  Ibid.  ;  sec  also  12  A'^in.  Ab.,  A.  b. 
22  ;   The  Bennett,  1  Dodson  180.  M. 


JUDGMENTS     IN     REM — ADMIRALTY.  380 

of  Admiralty,  'whether  domestic'  or  foreign,''  upon  prize  questions, 
being  decisions  of  an  exclusive  jurisdiction  operating  in  rem,  are 
conclusive  evidence  upon  the  matters  Avhich  they  decide,'  when  the 
same  points  arise  incidentally  in  other  courts  ;  whether  they  involve 
questions  as  to  the  right  of  property,  as  in  actions  of  trover;™  or  the 
questions  of  compliance  or  non-compliance  with  warranties  in  actions 
on  policies  of  assurance;  and  even  although  it  appear  that  the  court 
has  acted  on  peculiar  rules  of  evidence  and  presumptions  which  are 
not  consistent  with  general  principles."  ' 

the  world."  By  the  Master  of  the  Rolls,  in  Kindersleij  v.  Chase,  at  the  Cock- 
pit, 1801,  Park  on  Insurance  743. 

'  2  East  473  -,  Geyer  v.  Aguilar,  7  T.  R.  681  ;  Garrels  v.  Kensington,  8  T.  R. 
230  ;  Baring  v.  Ruijal  Exchange  Assurance,  5  East  99  ;  Le  Caux  v.  Eden,  2 
Doug.  600  ;  Kindersley  v.  Chase,  Park,  Ins.  743. 

^  Hughes  v.  Cornelius,  2  Show.  232 ;  2  Doug.  575  ;  Burrows  v.  Jemino,  2  Str. 
733;  Roach  v.  Garvan,  1  Yes.  157;  Eyre,  C.  J.,  observations,  2  H.  Bl.  410. 
But  the  sentence  must  be  given  either  in  the  belligerent  courts  or  in  that  of  a 
co-belligerent  or  ally,  by  a  court  constituted  according  to  the  law  of  nations  :  8 
T.  R.  270 ;  Havelock  v.  Rockwood,  8  T.  R.  268  ;  Donaldson  v.  Thompson,  1 
Camp.  429. 

'  Barzillag  v.  Leicis,  Park,  Ins.  725  ;  that  the  property  was  neutral :  Baring 
v.  Clagpett,  3  B.  &  P.  201 ;  Saloucci  v.  Woodmas,  3  Doug.  (26  E.  C.  L.  R.)  345; 
that  it  was  enemy's  property,  Park,  Ins.  725,  727. 

"  Ibid.  Per  Chambre,  J.,  in  Lothian  v.  Henderson,  3  B.  &  P.  513  ;  Baring  v. 
Claggett,  3  B.  &  P.  214. 

"  Bolton  v.  Gladstone,  5  East  155  ;  5  East  99  ;  2  Taunt.  85. 

'  This  doctrine  is  recognized  in  the  Supreme  Court  of  the  United  States,  in 
Massachusetts,  Connecticut  and  South  Carolina :  Craudson  et  al.  v.  Leonard,  4 
Cranch  434 ;  Baxter  v.  New  England  Marine  Ins.  Co.,  0  Mass.  277  ;  7  Id.  275  ; 
Steicard  v.  Warner,  1  Day  142;  Broum  v.  Union  Lis.  Co.,  4  Id.  179  ;  Campbell 
v.  Williamson,  2  Bay  237  ;  Groning  v.  Union  Lis.  Co.,  1  N.  &  McC.  537.  The 
Supreme  Courts  of  New  York  and  Pennsylvania  also  adopted  the  same  doctrine; 
Vandenheuvel  v.  U.  S.  Lis.  Co.,  2  Johns.  Cas.  125 ;  Dempsey  v.  Lis.  Co.  of  Penn- 
sylvania, 1  Binn.  299 ;  note  4  Yeates  119,  s.  c.  But  in  the  former  State,  a  con- 
trary doctrine  was  established  by  the  Supreme  Court  of  Errors,  2  Johns.  Cas. 
451  ;  and  in  the  latter,  the  legislature  have  enacted  that  no  sentence  of  a  foreign 
prize  court  shall  be  conclusive  evidence  of  anything  therein  contained,  except 
of  the  acts  and  doings  of  such  tribunal :  Act  of  March  29th,  1809,  5  Sm.  Laws 
49.  The  sentence  of  a  foreign  court  of  admiralty  or  other  foreign  tribunal,  is 
not  regarded  as  conclusive  evidence  by  the  courts  of  Virginia:  Bourke  v.  Gran- 
berry,  1  Gilm.  16.  The  doctrine  of  the  conclusiveness  of  foreign  prize  courts  is 
not  novel,  nor  does  it  take  its  origin  in  an  incorrect  extension  of  the  principle 
in  Hughes  v.  Cornelius  (2  Show.  232,  2  Dougl.  575),  but  is  coeval  with  the  species 
of  contract  to  which  it  is  applied,  and  results  from  the  application  of  the  same 
legal  principle  which  prevails  in  respect  to  domestic  judgments  and  sentences 
of  foreign  courts  ;  per  Washington,  J.,  Croudson  et  al.  v.  Leonard,  ubi  sup.    The 


381  JUDICIAL    DOCUMENTS. 

.-^r.^.-,  *Accordino;ly''  it  has  been  held  that  a  sentence  of  condem- 
■-  -^  nation  by  a  French  Court  of  Admiralty,  during  a  war  between 
England  and  France,  is  conclusive  evidence  to  show  that  the  ship  was 
not  Swedish. "^  So  a  sentence  of  condemnation  is  conclusive  evidence 
to  show  that  a  ship  was  not  neutral,  if  that  appear  to  have  been  the 
ground  of  condemnation.''  So  a  condemnation  of  a  ship  at  Malaga, 
on  the  ground,  inter  alia,  that  the  ship  was  English,  was  held  to  be 
conclusive  evidence  that  she  was  not  neutral."  And  whenever  the 
sentence  states  the  facts  upon  which  the  condemnation  was  grounded, 
it  is  conclusive  as  to  those  facts  ;^  as  where  the  ship  is  condemned  on 
the  ground,  that  she  was  enemy's  property.'  And  where  the  ground 
of  condemnation  is  doubtful,  the  court  will  look  into  the  proceedings 
to  ascertain  the  grounds  of  the  sentence,"  and  will  act  upon  the  grounds 
of  that  decision,  provided  they  can  be  distinctly  ascertained.'' 
L     ^  ''-'    But  such  a  *judgment  must  decide  the  point  distinctly  :  the 

"  Buin'ows  V.  Jemino,  2  Str.  732;  Roach  v.  Garvan,  1  Ves.  157.  Eyre,  C.  J., 
observations,  2  H.  Bl.  410;  contra,  Walker  v.  Witter,  1  Doug.  1. 

p  B.  N.  P.  2U ;  2  Show.  232. 

•J  Bernardi  v.  Motteux,  Doug.  554 ;   Calvert  v.  Bovill,  7  T.  R.  523. 

■•  Oddy  V.  Bovill,  2  East  473. 

'  Christie  v.  Secretan,  8  T.  R.  192 ;  Marshal  v.  Parker,  2  Camp.  69  ;  Everth  v. 
Hannam,  2  Marsh.  72 ;  Fisher  v.  Ogle,  1  Camp.  418. 

'  3  Bos.  &  Pul.  525  ;  Doug.  574. 

°  3  Bos.  &  Pul.  525 ;  Bolton  v.  Gladstone,  5  East  155 ;  Baring  v.  Royal  Ex- 
change Assurance  Company,  5  East  99.  If  a  ship  be  condemned  generally  as 
lawful  prize,  no  special  ground  being  stated,  it  is  to  be  presumed  that  it  pro- 
ceeded on  the  ground  that  the  property  was  that  of  enemies :  Saloucci  v.  Wood- 
mas,  3  Doug.  (26  E.  C.  L.  R.)  345  ;  Kindersley  v.  Chase,  Park,  Ins.  743. 

^  Kindersley  v.  Chase,  Cock-pit  1801,  Park  on  Ins.  743;  Sir  Will.  Scott's  ob- 
servations on  the  case  of  Pollard  v.  Bell,  Ibid.  AVhere  the  sentence  of  condem- 
nation of  a  foreign  prize-court,  for  breach  of  blockade,  was  expressed  with  so 
much  ambiguity  as  to  render  it  impossible  to  ascertain  the  real  ground  on  which 
it  proceeded  ;  held,  that  the  court  was  at  liberty,  upon  the  evidence  given  at  the 
trial  in  an  action  on  the  policy,  to  determine  whether  such  violation  of  the 
blockade  did  take  place  or  not ;  held  also,  that  a  voyage  described  in  the  policy 
as  to  B.,  but  if  advised  of  a  blockage  continuing,  then  to  M.  V.,  was  not  illegal; 
Dalgleish  v.  Hodgson,  7  Bing.  (20  E.  C.  L.  R.)  495;  and  see  Naylor  v.  Taylor, 
9  B.  &  C.  (17  E.  C.  L.  R.)  718 ;  The  Shepherdess,  5  Rob.  Adm.  R.  262 ;  llorneyer 
V.  Lushington,  3  Camp.  89 ;  Bernardi  v.  Motteux,  Doug.  581. 

sentence  of  a  prize  court,  however,  is  not  conclusive  to  establish  any  particular 
fact,  without  which  the  sentence  may  have  been  rightly  pronounced  :  Maley  v. 
Shatturk,  3  Cranch  4S8  ;  see  Filzsimmons  v.  Newport  Ins.  Co.,  4  Cranch  185  ; 
Maryland  Ins.  Co.  v.  Wood,  6  Cranch  29  ;  The  Mary,  9  Cranch  126  ;  Calhoun  v. 
Ins.  Co.  of  Pennsylvania,  1  liin.  293  ;  and  Galbraith  v.  Grade,  there  cited ;  1 
Hall's  Law  Journal  139,  148.  M, 


JUDGMENTS — HOW     IMPEACHED.  382 

intention  of  the  court  to  decide  the  point  is  not  to  be  collected  by  in- 
ference or  argument,  but  by  specific  afiirmation  ;^  and  even  to  this  ex- 
tent such  decisions  have  not  without  considerable  reluctance  been  held 
to  be  conclusive/  If  the  facts  disclosed  do  not  warrant  the  sentence, 
it  will  not,  as  to  them,  be  conclusive.'' 

So  if  the  sentence  has  not  decided  the  question  of  property,  nor 
declared  whether  it  be  neutral,  but  has  condemned  the  property  as 
prize  on  a  different  ground,  e.  g.,  of  a  foreign  ordinance  against  the 
law  of  nations,  the  sentence,  although  conclusive  on  the  question  of 
prize  or  no  prize,  would  not  be  so  on  the  question  of  neutrality.'' 
Such  a  sentence  is  not  admissible,  unless  it  be  that  of  a  court,  consti- 
tuted according  to  the  law  of  nations,  exercising  its  functions  in  the 
belligerent  country,  or  in  the  country  of  a  co-belligerent  or  ally"  in 
the  war. 

Such  a  sentence  is  binding,  not  only  on  the  parties  to  the  foreign 
suit,  but  in  all  courts  and  on  all  persons. "^  The  admissibility  of  such 
evidence  seems  to  extend  to  all  ^decisions  of  foreign  courts  r^ooon 
of  competent  jurisdiction  which  operate  in  rem.^ 

So  orders  of  justices  on  questions  of  settlement,  not  appealed  against,^ 
or  when   confirmed  at  sessions,  are  conclusive  against  all,^  as  to  all 

y  Per  Lord  Ellenborough,  C.  J.,  in  Fisher  v.  Ogle,  Park  on  Ins.  554 ;  1  Camp. 
C.  418.     Per  Tindal,  C.  J.,  Dalgleish  v.  Hodgson,  7  Bing.  (20  E.  C.  L.  R.)  504. 

*  See  Lord  Ellenborough's  observations,  Ibid. 

»  Calvert  v.  Bovill,  7  T.  R.  523 ;  Pollard  v.  Bell,  8  T.  R.  444 ;  see  also  Bird  v. 
Appleton,  8  T.  R.  562;  Bolton  v.  Gladstone,  2  Taunt.  85;  2  Camp.  154.  If  the 
grounds  of  the  decision  do  not  at  all  appear,  qu. 

"  Pollard  V.  Bell,  8  T.  R.  444;  Baring  v.  Claggett,  3  B.  &  P.  215;  Bird  v. 
Appleton,  8  T.  R,  562. 

"  Oddy  V.  Bovill,  2  East  473.  And,  therefore,  a  sentence  pronounced  by  the 
authority  of  a  capturing  power,  within  the  dominions  of  a  neutral  country,  to 
which  the  prize  has  been  taken,  is  illegal,  and  inadmissible  to  falsify  the  war- 
rants of  neutrality  :  Havelock  v.  Rockwood,  8  T.  R.  268  ;  The  Flad  Oyen,  8  T.  R- 
270 ;  Donaldson  v.  Thompson,  1  Camp.  429. 

**  See  Kindersley  v.  Chase,  Park  on  Ins.  743. 

®  As  in  case  of  marriage:  Roach  \.  Garvan,  1  Ves.  157.  See  Lord  Hard- 
wicke's  observations,  Ibid.  So  on  criminal  charges  :  Hutchinson'' s  case,  2  Str. 
733;  1  Show.  6;  Roche's  case,  1  Leach.  C.  C.  L.  134  ;  supra,  and  see  Vol.  II., 
tit.  Marriage  ;  and  further,  as  to  the  mode  of  proving  the  foreign  law,  see  Vol. 
II.,  tit.  Foreign  Law. 

f  Rex  V.  Kenilworth,  2  T.  R.  599. 
.  ^  R.-v.  Northfeatherton,  1  Sess.  C.  154;  4  Ch.  Burn.  1159.     So  an  order  of 
filiation  is  conclusive  to  show  that  the  party  is  the  putative  father :  R.  v.  Best 
and  others,  6  Mod.  185 ;  see  also  R.  v.  Calterall,  6  M.  &  S.  83  ;  R.  v.  Sarratt, 
Burr.  S.  C.  73  ;  R.  v.  Harrow  and  Ryslip,  Salk.  524  -,  R.  v.  Kneptoft,  2  B.  &  C 


383  JUDICIAL     DOCUMENTS. 

the  facts  stated  in  the  order,''  and  as  to  all  derivative  settlements.' 
So  an  order  of  removal  executed  without  appeal  is  also  conclusive^  as 
to  the  settlement  of  the  pauper  up  to  that  time  against  all  the  "world  ; 
but  where  the  justices  wanted  jurisdiction,  the  order  is  a  nullity  ;'' 
and  may  be  objected  against,  even  after  a  lapse  of  twenty  years. 
So  orders  of  justices  under  34  Geo.  III.,  c.  64,  for  dividing  roads, 
are  conclusive.^ 

r*SS41  "^^^®  proceeding  by  quo  warranto  is  analogous  to  a  pro- 
ceeding *m  rem,  so  that  a  judgment  of  ouster  against  a 
mayor  upon  a  quo  warranto  is  evidence  upon  a  similar  proceeding 
against  a  burgess  who  claims  to  have  been  admitted  by  that 
mayor;"  and  is  conclusive  evidence,  unless  fraud  can  be  shown." 
So  also  a  conviction  of  felony  is,  for  many  purposes,  a  proceeding 
in  rem;  and  is  in  general  binding  against  all  as  to  the  consequences 
of  the  attainder.  It  is,  however,  as  has  been  seen,  competent  to  an 
accessory  to  controvert  the  guilt  of  the  alleged  principal,  although 
the  record  of  conviction  may  be  in  some  cases  primd  facie  evidence 
against  the  accessory  as  to  the  guilt  of  the  principal.  In  Buller's 
Nisi  Prius,  a  conviction  for  bigamy  seems  to  be  considered  to  be  in 
the  nature  of  a  proceeding  in  rem  ;  and,  therefore,  as  conclusive  in 
an  action  of  ejectment  upon  a  question  of  legitimacy ;°  this,  however, 
seems  to  be  very  doubtful  on  principle. 

Where  the  judgment  is  admissible  evidence  against  one  who  was 

(9  E.  C.  L.  R.)  883  ;  R.  v.  Wick  St.  Lawrence,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  526 : 
R.  V.  Wheelock,  5  B.  &  C.  (11  E.  C.  L.  R.)  511  ;  Osgathorpev.  Diseivorth,  2  Str. 
1256  ;  R.  V.  Oldburij,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  167.  The  fact  whether  the 
order  was  quashed  on  the  merits  or  not  may  be  inquired  into  on  subsequent  re- 
moval :  R.  V.  Wick  St.  Lawrence,  ;  R.  v.  Wheelock,  uhi  sup. ;  R.  v.  St.  Ann's, 
Westminster,  9  Q.  B.  (58  E.  C.  L.  R.)  878;  R.  v.  Widecomhe,  Ibid.  894;  R.  v. 
Leeds,  Ibid.  910.  It  seems  questionable  whether  a  pauper  lunatic  order  under 
9  Geo.  IV.  c.  40,  is  final:  R.  v.  St.  Peter's,  Droitwich,  9  Q.  B.  (58  E.  C.  L.  R.) 
886.  See  Vol.  II.,  tit.  Settlement,  where  the  decisions  are  more  fully  con- 
sidered. 

"  Ibid. ;  and  R.  v.  Woodchester ,  2  Str.  1172;  B.  S.  C.  191. 

*  R.  V.  St.  Mari/,  Lambeth,  6  T.  R.  616 ;  R.  v.  Slichester,  B.  S.  C.  551  ;  2  Bott. 
686  ;  R.  V.  Wi/e,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  770 ;  per  Lord  Denman,  C.  J. 

J  Rex  V.  Kenilworth,  2  T.  R.  598  ;  R.  v.  Corsham,  1 1  East  388  ;  and  see  2  Salk. 
488 ;  Sutton  St.  Nicholas  v.  Leverington,  B.  S.  C.  276. 

"  R.  V.  Chilverscoton,  8  T.  R.  178. 

»  R.  V.  Hicklinif,  7  Q.  B.  (53  E.  C.  L.  R.)  880. 

°  B.  N.  P.  231  ;  R.  V.  Lisle,  Andr.  163  :  R.  v.  Hehdeii,  2  Str.  1109;  R.  v. 
Mayor  of  York,  5  T.  R.  66. 

°  R.  V.  Mayor  of  York,  5  T.  R.  66. 

•■  B.  N.  P.  245  ;  surpa,  338,  et  scq. 


JUDGMENTS,     UOW     IMPEACHED — FRAUD.  384 

neither  a  party  nor  privy  to  it,  being  a  direct,  final  and  conclusive 
determination  of  a  court  of  competent  jurisdiction  upon  the  particu- 
lar subject-matter,  the  rule  seems  to  be  that  the  judgment  is  conclu- 
sive in  any  other  court,  unless  it  can  be  impeached  on  the  ground  of 
fraud  or  collusion.'' '  Fraud,  however,  does  not  merely  lower  the 
evidence  to  mere  primd  facie  evidence  of  the  fact,  capable  of  being 
rebutted  by  adverse  evidence,  but  destroys  its  effect  altogether. 
For  it  seems  that  a  record  of  a  judgment  in  rem  is  usually  either 
conclusive,  or  wholly  inoperative;  except,  indeed,  in  those  cases  of 
felony  where  the  guilt  of  the  accused  depends  partly  upon  the  guilt 
of  another,  as  the  guilt  of  an  accessory  depends  upon  that  of  the 
principal ;  for  there  the  record  of  the  conviction  *of  the  prin-  r^ooc-i 
cipal  is  but  primd  facie  evidence  to  affect  the  accessory,  who 
may  controvert  the  guilt  of  the  principal,  notwithstanding  the 
record. '^  A  judgment  upon  a  quo  warranto  against  a  mayor,  which 
is  evidence  as  we  have  seen  upon  a  quo  ivarranto  against  one  claim- 
ing to  be  a  burgess  by  virtue  of  his  admission,  may  be  impeached 
upon  the  ground  of  fraud. '^  So  in  The  Duchess  of  Kingston  s  case, 
the  trial  of  the  defendant,  on  an  indictment  for  bigamy,  one  of  the 
points  resolved  by  all  the  judges  was,  that  admitting  a  sentence  of 
the  Spiritual  Court  in  a  jactitation  suit  to  be  conclusive  evidence  for 
a  defendant,  yet,  that  still  the  counsel  for  the  Crown  might  avoid  the 
effect  of  it  by  proving  it  to  have  been  obtained  by  fraud  and  collu- 
sion.'^ 

P  B.  N.  P.  244;  31  St.  Tr.  262.  Fraud  (according  to  Lord  Coke)  avoids  all 
judicial  acts,  ecclesiastical  or  temporal:  3  Co.  77. 

*•  Fost.  365,  366,  367  ;  Lord  Sanchar^s  case,  9  Co.  117,  119;  supra,  England 
V.  Bourke,  3  Esp.  C.  80.     See  ante,  p.  367,  note  (c). 

••  E.  V.  Grimes,  Burr.  2598  ;  B.  N.  P.  231  ;  2  Barnard  370  ;  B.  v.  Lisle,  Andr. 
163;  5  T.  R.  72;  E.  v.  Hebden,  Str.  1100;  17  How.  St.  Tr.  802;  and  see  the 
cases  last  cited. 

»  20  How.  St.  Tr.  355  ;   Cross  v.  Salter,  3  T.  R.  639. 

*  A  judgment  cannot  be  collaterally  questioned  unless  for  covin  or  collusion  : 
Postens  V.  Postens,  3  W.  &  S.  127 ;  Baird  v.  Campbell,  4  Ibid.  191  ;  Atkinson  v. 
Allen,  12  Vt.  619;  Callahan  v.  Grisioold,  9  Mo.  784;  Smith  v.  Keen.  26  Me. 
411.  A  judgment,  if  merely  irregular,  is  binding  upon  everybody  but  the  de- 
fendant; another  judgment  creditor  against  the  same  defendant  cannot  take 
advantage  of  the  irregularity :  Loivber  <&  Wilmer^s  Appeal,  8  W.  &  S.  387  ; 
Evans  v.  Adams,  3  Green.  373  ;  Smith  v.  Bradley,  6  S.  &  M.  485  ;  Swiggart  v. 
Harber,  4  Scam.  364;  Lewis  v.  Eogers,  4  Harris  18  ;  Chesnut  v.  Marsh,  12  111. 
173  ;  Eoemer  v.  Denig,  6  Harris  482  ;  Breading  v.  Buggs,  8  Ibid.  33. 

'^  See  Hull  V.  Blake,  13  Mass.  157;  Potter  v.  Wheeler,  Id.  507;  Winchellv. 
Stiles,  15  Mass.  230;  Borden  v.  Fitch,  15  Johns.  121 ;  Andrews  v.  Montgomery, 


385  JUDICIAL    DOCUMENTS. 

Although  it  is  a  general  rule  that  a  stranger  may  he  admitted  to 
impeach  a  proceeding  to  which  he  was  not  a  party,  on  the  ground 
of  fraud  or  collusion,  the  reason  ceases  where  the  judgment  or  sen- 
tence is  offered  against  one  who  was  a  paity  to  it.  In  the  case  of 
Prudham  v.  Phillips,  the  defendant  proved  her  marriage  with  A. 
B. ;  this  was  answered  by  a  sentence  in  the  Ecclesiastical  Court  (to 
which  she  was  a  party),  which  showed  that  she  was  then  married 
to  another  person :  and  after  much  consideration,  Willes,  C.  J., 
refused  to  permit  the  defendant  to  show  that  the  sentence  had  been 
fraudulently    obtained.'     Judgments   of   courts    of   competent  juris- 

»  Ambler  763.  And  see  Bessexj  v.  Windham,  6  Q.  B.  (51  E.  C.  L.  R.)  166. 
But  where  a  sci.  fa.  is  brought  against  a  shareholder  of  a  company  on  a  judg- 
ment against  the  company,  he  may  allege  that  the  judgment  was  obtained  by 
fraud ;  see  Philipson  v.  Earl  of  Egremont,  6  Q.  B.  (51  E.  C.  L.  R.)  587. 

19  Johns.  164,  where  the  principle,  that  fraud  will  vitiate  all  judicial  acts  is  dis- 
tinctly recognized.  In  Stewart  v.  Warner  et  al.,  1  Day  142,  it  was  held,  how- 
ever, that  the  sentence  of  condemnation  of  a  foreign  court  could  not  be  avoided 
by  fraud,  when  collaterally  called  in  question.  The  judgments  of  a  court  of  com- 
petent jurisdiction,  although  obtained  by  fraud,  have  never  been  considered  as 
absolutely  void ;  and  therefore  all  acts  performed  under  them  are  valid  so  far  as 
respects  third  persons.  A  sheriif,  who  levies  an  execution  under  a  judgment 
fraudulently  obtained,  is  not  a  trespasser;  nor  can  the  person,  who  purchases 
at  a  sale  under  such  an  execution,  be  compelled  to  relinquish  the  property  he 
has  purchased.  All  acts  performed  under  such  a  judgment  are  valid  acts  ;  all 
the  legal  consequences  which  follow  a  judgment  are,  with  respect  to  third  per- 
sons, precisely  the  same  in  one  obtained  by  fraud  as  if  it  had  been  obtained 
fairly.  When  a  person  who  has  committed  the  fraud  attempts  to  avail  himself 
of  the  Act,  so  as  to  discharge  himself  from  a  previously  existing  obligation  or 
to  acquire  a  benefit,  the  judgment  thus  obtained  is  declared  void  as  to  that  pur- 
pose; but  it  may  well  be  doubted  whether  a  penalty  would  be  incurred  even  by 
the  person  committing  the  fraud,  for  an  act  which  the  judgment  would  sanction. 
It  is  believed  that  no  case  can  be  adduced  where  an  act,  which  is  the  legal  con- 
sequence of  a  judgment,  has  in  itself  created  a  new  responsibility,  even  with 
respect  to  the  party  himself,  much  less  with  respect  to  third  persons  who  do  not 
participate  in  the  fraud.  Per  Marshall,  C.  J.,  Simms  et  al.  v.  Slocicm,  3  Cranch 
300.  Hence  it  was  held  in  that  case,  that  a  discharge  from  the  prison  rules, 
under  the  Insolvent  Act  of  Virginia,  although  obtained  by  fraud,  was  a  dis- 
charge in  due  course  of  law;  and  that  upon  such  discharge,  no  action  could  be 
sustained  upon  the  prison  bonds.  So  in  Ainmidon  v.  Smith,  et  al.,  1  Wheat. 
447,  a  similar  decision  was  made  respecting  a  discharge  according  to  the  statute 
of  Rhode  Island,  for  the  relief  of  poor  prisoners  for  debt,  although  obtained  by 
fraud  and  perjury.  "  But  the  court,"  says  C.  J.  Marshall,  "does  not  mean  to 
indicate  that  the  effect  of  the  oath  and  discharge  granted  by  the  magistrate, 
miglit  not  be  controv(!rted  in  any  proceeding  against  the  parties  either  in  law  or 
equity,  other  tlian  in  a  suit  on  the  bond  for  keeping  tiic  prison  rules."' — M.  (See 
also  Lincoln  v.  Williams,  12  S.  &  R.  105. — I.) 


EVIDENCE     TO     PROVE     CUSTOM,     ETC.  385 

diction  in  foreign  countries,  upon   the  subject  of  marriage,  and  all 
other  matters  where  the  adjudication  can  be  considered*  as 
in  rem,  seem  to  be  equally  binding  with  the  decisions  of  our    L         J 
own  courts." 

Lastly,^  in  cases  of  custom,  prescription  and  pedigree,  or  where 
general  reputation  is  evidence,  a  judgment,  decree  or  sentence  is 
evidence,  not  ordy  as  between  the  same  parties  (where  it  would  be 
conclusive  upon  the  same  point),  but  also  against  all  others  ;  for 
such  evidence  is  of  the  same  nature,  but  much  stronger,  than  mere 
evidence  of  reputation.^  ^  It  is  not  indeed  to  be  considered  as  evi- 
dence of  any  specific  fact  existing  at  that  time,  but  it  is  proof  of  an 
adjudication  of  a  competent  tribunal  upon  the  state  of  facts  and  upon 
the  question  of  usage  at  that  time.''  Accordingly,  to  prove  a  custom, 
not  only  an  ancient  verdict  in  prohibition  has  been  held  to  be  evidence, 
but  also  a  recent  verdict.*^  So  is  a  decree  in  the  Exchequer,  on  a  com- 
mission to  try  the  question  of  custom  ;''  or  of  modus."  So  in  the  case 
of  a  prescription  for  a  public  right  of  way,  a  verdict  against  one  de- 
fendant, negativins  such  a  right,  is  evidence  against  another  defendant 
■who  justifies  under  the  same  right."^  So  upon  a  question  as  to  aright 
of  ferry,''  or  the  liability  to  repair  a  public  highway,^  or  bridge,^  or 

"  See  Lord  Ilardwicke's  dictum,  Roach  v.  Garvin,  1  Yes.  159;  and  sitp)-a,  p. 
383. 

^  Supra,  p.  320. 

y  Reed  v.  Jackson,  1  East.  355.  The  record  of  a  judgment  in  an  action  of 
ti*espass  by  a  corporation  for  putting  up  stalls  in  a  market,  the  defendant  hav- 
ing pleaded  a  right  to  do  so  without  paying  toll,  is  admissible  evidence  for  the 
corporation,  being  relevant  to  the  claim  in  issue :  Lancum  v.  Lovell,  6  C.  &  P. 
(25  E.  C.  L.  R.)  437.  But  the  rule  does  not  extend  to  awards:  Evans  v.  Rees, 
10  Ad.  &E.  (37  E.  C.  L.  R.)  151. 

^  Per  Parke,  B.,  Pirn  v.  Curell,  6  M.  &  W.  266, 

■^  B.  N.  P.  233  ;   City  of  London  v.  Clarke,  Garth.  181. 

"  Cart  V.  Birkheck,  Doug.  218. 

«  Croughton  v.  Blake,  12  M.  &  W.  205. 

1  Reed  v.  Jackson,  1  East  355.  «  Pirn  v.  Curell,  6  M.  &  W.  234. 

f  Ibid.,  and  R.  v.  St.  Pancras,  Peake,  C.  219. 

e  R.  V.  Sutton,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  516. 

'  Verdicts  and  judgments  between  other  parties  (says  the  court  of  Connecti- 
cut) are  admissible  to  prove  a  public  right  of  way,  only  when  the  party  claims 
by  prescription,  and  merely  to  corroborate  the  presumption  of  a  grant :  Foicler 
V.  Savage,  3  Oonn.  90.  M. 

Although  in  general  a  verdict  between  strangers  cannot  be  given  in  evidence 
against  a  party,  yet,  where  reputation  is  admissible  in  evidence,  a  verdict  be- 
tween strangers  may  be  also,  as  on  a  question  of  pedigree  :  Patterson  v.  Gaines, 
6  How.  S.  C.  550;  Pile  v.  McBratney,  15  111.  314. 


386  JUDICIAL     DOCUMENTS. 

sea  walls,^  or  upon  the  public  right  of  election  to  a  parochial  office,  a 
-,  *judo;ment  or  decree  between  third  parties  in  evidence.'  So 
L  J  in  an  action  by  the  lord  of  a  manor  against  a  copyholder  for 
trespass  to  his  free  warren,  a  judgment  in  a  quo  warranto  brought 
against  the  former  owner  of  the  manor,  in  which  he  pleaded  a  pre- 
scriptive right  to  the  free  warren  as  appurtenant  to  the  manor,  and 
the  Attorney-General  confessed  it  on  record,  is  evidence  for  the  plain- 
tiff in  support  of  the  right  of  free  warren  by  prescription.''  And  this 
over  the  lands  of  tenants  as  well  as  over  the  demesne  lands,  where  the 
information  charged  a  usurpation  of  the  franchise  over  both,  and  the 
court  gave  judgment  for  the  defendant  as  to  both,  although  the  plea 
set  forth  a  title  as  to  the  demesne  lands  only,  and  the  Attorney- 
General's  confession  followed  the  plea  ;  the  court  thinking  it  pro- 
bable that  the  omission  was  accidental.'  A  recent  judgment  for  the 
plaintiff  in  another  action  against  another  copyliolder  for  a  trespass 
on  the  plaintiff's  free  warren  also  held  admissible  against  the  defend- 
ant." So  a  special  verdict  between  other  parties  is  evidence  to  prove 
a  pedigree." 

Such  evidence  is  not  conclusive,"  unless  both  the  parties  be  the  same. 
When  such  evidence  is  adduced  to  prove  a  custom  or  prescription, 
where  general  reputation  would  be  evidence  a  judgment  or  verdict 
would  be  evidence  against  strangers  to  the  record,  as  falling  within 
the  general  description  of  evidence  capable  of  supporting  such  an 
issue,  being  in  fact  a  solemn  adjudication  founded  upon  satisfactory 
testimony,  and  therefore  certainly  as  binding  upon  a  stranger  as  much 
as  mere  hearsay  upon  the  subject ;  *but  it  is  not  conclusive, 
'-  -■  where  the  party  was  in  fact  a  stranger  to  the  record,  because 
he  had  not  an  opportunity  to  cross-examine  the  witnesses,  or  to  dis- 
prove the  fact  by  opposite  testimony,  and  ought  not  to  be  concluded 
by  the  laches  of  another. 

The  proofs  of  verdicts,  decrees  and  judgments,  whether  of  record 

"  Reri.  V.  Leigk,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  398. 

'  Berri/  v.  Banner^  Peake,  C.  15G. 

^  Karl  of  Carnavon  v.  Villehois,  13  M.  &  W.  313.  >  Ibid. 

"  Ibid. 

"  B.  N.  P.  233  ;  Carth.  79  ;  Sir  T.  Jones,  224;  Neale  v.  Wilding,  2  Str.  1151. 
Wright,  J.,  was  of  opinion  in  that  case  that  the  verdict  was  admissible ;  the 
other  judges  diffcrcMl  from  him,  because  it  was  res  inter  alios  acta,  and  the  evi- 
dence laid  before  the  former  jury  might,  for  anything  they  knew  to  the  contrary, 
still  be  produced. 

'  See  the  cases  referred  to,  and  also  Toolcer  v.  Dvke  of  Beaufort,  1  Burr.  146  ; 
liidilvlph  V.  Ather,  2  Wils.  23;   Mayor  of  Hull  v.  Horner,  Cowp.  102. 


JUDGMENTS,  ETC.,  HOW  IMPEACHED.         388 

or  not  of  record,  have  already  been  considered  in  common  "with  the 
proofs  of  public  documents  in  general.''  At  present,  such  matters 
only  will  be  noticed  as  are  peculiar  to  this  species  of  document. 
They  are  either  of  record  or  not  of  record.  If  of  record,  they  are 
to  be  proved  either  by  actual  production  from  the  proper  repository, 
by  an  exemplification,''  or  by  a  sworn'  or  admitted"  copy.  Records 
are  complete  as  soon  as  they  are  delivered  into  court  engrossed  upon 
parchment,  and  become  permanent  rolls  of  the  court;'  then,  and  not 
before,  a  copy  becomes  evidence."  On  a  writ  of  error  assigning  as 
error  *that  the  sentence  (for  cons])iracy)  pronounced  at  Nisi  r^ooQ-i 
Prius  was  f^iulty,  the  Exchequer  Chamber  refused   to   notice 

P  See  Public  Documents,  Proof  of,  ante,  p.  257,  et  seq. ;  and  see  pp.  262,  263, 
the  statutes  as  to  admission  of  certified  copies. 

"  See  ante,  p.  257 ;  Bac.  Abr.,  Ev.  F. ;  Str.  162. 

'  On  7ml  iiel  record  the  record  itself  must  be  produced,  or  its  tenor  certified  by 
certiorari ;  see  ante,  p.  256,  and  there  can  be  no  amendment  of  a  variance  under 
3  &  4  Will.  IV.  c.  42 ;  Cooper  v.  Penny  father ,  7  C.  B.  (62  E.  C.  L.  R.)  739.  Va- 
rious statutes  have  directed  that  copies  of  the  proceedings  under  them  authenti- 
cated in  vfirious  modes  shall  be  evidence,  see  ante,  p.  264.  And  there  is  also  the 
general  statute,  8  &  9  Vict.  c.  113,  set  out,  ante,  p.  296,  as  to  such  copies. 
Where  no  other  Act  exists  which  renders  a  copy  of  any  public  book  or  docu- 
ment admissible,  a  copy,  purporting  to  be  signed  and  certified  by  the  officer  to 
whose  custody  the  original  is  entrusted  is  admisible,  14  &  15  Vict.  c.  99,  s.  14. 
By  s.  13  also  of  that  Act  a  certified  copy  of  a  conviction  or  acquittal  of  any  in- 
dictable ofi"ence  is  made  evidence  without  the  formal  parts.     See  Appendix. 

'  Notice  should  be  given  to  admit  copies,  which  if  admitted  will  be  evidence  : 
Dames  v.  Bavies,  9  C.  &  P.  (38  E.  C.  L.  R.)  252. 

'  Therefore  an  unsealed  issue  roll  not  carried  in,  and  bearing  only  an  ink 
stamp  sold  by  stationers  with  the  name  of  the  court,  and  the  number  of  the  roll, 
is  not  a  rccoi'd,  and  is  no  evidence  of  the  entry  of  a  nolle  prosequi  as  to  one  de- 
fendant: Fagan  v.  Daivson,  4  M.  &  G.  (43  E.  C.  L.  R.)  711. 

"  Gilb.  Law  of  Ev.  25  ;  ante,  p.  257 ;  B.  N.  P.  228.  An  allegation  in  an 
indictment  that  at  the  quarter  sessions,  &c.,  a  bill  of  indictment  was  preferred 
against  A.  B.  and  found  by  the  grand  jury,  could  only  be  proved  by  a  caption 
formally  drawn  up  of  record  and  by  the  production  of  the  original  or  an 
examined  copy  ;  therefore  the  minutes  of  the  clerk  of  the  peace  were  inadmis- 
sible, although  no  record  had  in  fact  been  drawn  up :  R.  v.  Smith,  8  B.  &  C. 
(15  E.  C.  L.  R.)  341.  But  in  The  King  v.  Tooke,  there  (^ited,  it  was  held  that 
the  indictment,  with  the  officer's  notes,  was  during  the  same  sitttings  evidence 
of  an  acquittal  of  one  charged  as  a  conspirator,  Avithout  having  the  record 
formally  drawn  up  ;  see  tit.  Conspiracy.  To  prove  the  time  of  signing  final 
judgment,  the  day-book  at  the  judgment-office,  from  which  the  judgments  are 
entered  into  the  docket-books,  is  not  evidence :  Lee\.  Meecock,  5  Esp.  C.  177. 
Proof  of  a  writ  of  execution  is  not  evidence  of  a  judgment,  except  as  against  a 
party  to  the  cause:  Ackicorth  v.  Kempe,  Doug.  40;  Besseyv.  Windham,  6  Q.  B. 
(51  E.  C.  L.  R.)  166  ;  and  see  also  Vol.  II.,  tit.  Sheriff. 


389  JUDICIAL     DOCUMENTS. 

a  statement  of  the  sentence  embodied  in  the  transcript  of  the  record, 
but  required  the  j^ostea  itself  with  the  sentence  endorsed  to  be  brouglit 
up,  and  granted  a  certiorari  for  that  purpose/  A  judgment  of  the 
House  of  Lords  may  be  proved  bj  means  of  a  copy  of  the  minute- 
book  of  the  House  of  Lords,  for  the  minutes  of  the  judgment  are 
the  solemn  judgment  itself/  An  averment  that  a  commission  has 
been  duly  superseded,  must  be  proved  by  a  writ  of  supersedeas  under 
the  great  seal/ 

A  verdict  is  not  evidence  without  producing  the  judgment,  or  an 
examined  copy,  for  perhaps  the  judgment  was  arrested,  or  a  new 
trial  granted  ;"  ^  but  the  rule  does  not  hold  where  the  trial  was  upon 
an  issue  out  of  Chancery,  for  there  the  decree  was  evidence  that  the 
verdict  was  satisfactory/     But  the  production    of  the  postea  without 

=^  R.  V.  Kiiiff  and  others,  7  Q.  B.  (53  E.  C.  L.  R.)  782. 

y  Pe7-  Lord  Mansfield,  Joiies  v.  Randall,  Cowp.  17  ;  Bac.  Abr.,  Ev.  F. 

^  Poynton  v.  Forster,  3  Camp.  60. 

TiMonv.  Walter,  1  Str.  161;  Willes  367;  B.  N.  P.  234;  Hard.  118.  But 
formerly  a  verdict  was  admitted,  although  the  judgment  was  arrested  :  Gilb. 
Law  of  Ev.  31. 

^  Mongomery  v.  Clarice,  B.  N.  P.  234 ;  Bac.  Abr.,  Ev.  F. ;  Hopkins  v.  Jones,  1 
Barnard  243.  Where  a  court  of  equity  directs  the  second  trial  of  an  issue,  the 
verdict  on  the  first  is  not  admissible  in  evidence  on  the  second :  O'  Conner  v. 
Malone,  G  CI.  &  F.  572. 

^  This  principle  was  recognized  in  Rldgeli/  et  al.  v.  Spencer,  2  Binn.  70,  where 
it  was  decided  that  a  former  verdict  in  the  same  cause  which  had  been  set  aside 
by  the  court  was  not  evidence.  So  a  verdict  in  a  former  suit,  where  the  judg- 
ment was  reversed  for  error  in  fact,  is  not  evidence  on  a  new  trial:  Richardson^ s 
Lessee  v.  Parsons,  1  Har.  &  J.  253  ;  s.  p.,  Greene  v.  Stone,  Ibid.  And  a  special 
verdict  found  on  a  former  trial  betAveen  the  same  parties,  but  which  was  set 
aside  because  a  fact  was  not  sufficiently  found,  is  not  evidence  on  another  trial  : 
Mahoney  v.  Ashton,  4  liar.  &  McIIen.  295.  But  in  Pennsylvania,  a  verdict  in  a 
former  ejectment  is  evidence  against  the  defendant,  if  he  has  acquiesced  in  it 
by  paying  the  costs  and  delivering  possession,  although  no  judgment  has  been 
entered  upon  it:  Sha'effer  y.  Kreitzer,  6  Binn.  430.  In  Tennessee,  a  verdict 
cannot  be  given  in  evidence,  unless  it  appears  from  the  record  that  judgment 
has  been  given  upon  it ;  the  court  will  not  presume  that  judgment  was  entered  : 
Ragunv.  Kennedy,  1  Overt.  94.  So  in  Kentucky,  a  verdict  without  judgment 
thereon  is  not  admissible  evidence  :  Donaldson  v.  Jude,  4  Bibb.  60.  In  Hunkle 
v.  Carrath,  1  Const.  Rep.  471,  the  court  of  South  Carolina,  in  a  suit  on  a  record 
from  an  adjoining  State,  where  the  practice  was  said  to  be  very  loose,  declared 
that  whenever  they  could  find  on  the  record  of  another  State  a  single  word  or 
act  of  the  court  from  which  a  judgment  might  be  inferred,  they  would  give 
effect  to  it;  but  that  where  the  record  showed  a  verdict  only,  an  action  could 
not  be  maintained  on  it.  In  New  York,  a  verdict  in  an  action  before  a  justice 
of  till'  |i(;icc  In  (nidence  without  producing  the  judgment;  for  the  justice  can 
iKiilii  r  arrcht  judgment  nor  grant  a  new  trial,  but  is  bound  to  give  judgment 
on  the  verdict:  Fetter  \.  Mulliner,  2  Johns.  181,  M. 


JUDGMENTS,     ETC.,     HOW    PROVED.  390 

*the  judgment  is  evidence  to  show  the  fact  that  there  was  a  r^onni 
trial  between  the  parties,"  and  the  amount  of  tlie  damages  ; 
or  as  introductory  of  the  evidence  of  a  witness  *sincc  dead  f  r*QQi-| 
or  on  a  trial  for  perjury.  So  an  allegation  that  an  indict- 
ment was  preferred,  and  a  true  bill  found,  is  not  proved  by  the  pro- 
duction of  the  bill  itself  indorsed  as  a  true  bill,  but  should  be  proved 
by  the  record  made  up  ;*  and  the  sentence  of  the  court  at  the  assizes 

•=  Str.  162  ;  Barnard  243  ;  R.  v.  Minns,  2  Esp.  N.  P.  253  ;  see  Harrap  v.  Brad- 
shaw,  9  Pri.  359  ;  Willes  367.  In  Fisher  v.  Kitchingman,  Willes  367,  it  was  held 
that  the  postea  and  endorsement  on  it  were  admissible  to  prove  allegations,  that 
a  cause  (which  was  proved  aliunde  to  have  existed)  was  Vjrought  lo  trial  on  an 
issue  joined,  when  a  juror  was  withdrawn  and  the  cause  referred  ;  see  Barnes 
449;  7  Mod.  451.  But  the  postea  is  not  evidence  to  establish  the  fact  proved  by 
the  verdict:  Fitton  v.  Walter,  1  Str.  162;  in  Garland  v.  Scoones,  2  Esp.  C.  648, 
indeed.  Lord  Kenyon  is  reported  to  have  held  that  the  mere  production  of  the 
postea  was  sufficient  to  establish  a  set-off  for  the  defendant,  to  the  extent  of  the 
sum  endorsed  as  the  verdict  in  the  cause  ;  and  added,  that  in  the  case  of  issues 
out  of  Chancery,  the  Chancellor  always  admitted  the  production  of  the  postea 
as  conclusive  evidence  of  the  extent  of  the  demand.  But  it  is  not  usual  to 
enter  up  judgment  in  such  a  case,  and  the  decree  of  the  Court  is  proof  that  the 
judgment  stands  in  force  :  Montgomery  v.  Clarke,  B.  N.  P.  234  ;  Hopkins  v.  Jones 
1  Barnard  243.  In  the  case  of  Baskerville  v.  Brown,  2  Burr.  1229,  which  was 
cited  by  the  party  offering  the  postea  in  Garland  v.  Scoones,  the  objection  was, 
that  the  defendant  having  recovered  a  verdict  for  30?.  against  the  plaintiff  at  the 
same  sittings,  could  not  set  off  against  the  plaintiff's  claim  in  the  latter  action 
for  IIZ.,  part  of  the  sum  for  which  he  had  obtained  a  verdict,  without  deducting 
the  1 IZ.  There  the  postea  was  offered,  not  by  the  defendant  in  the  latter  action  to 
establish  his  set-off,  but  by  the  plaintiff  in  the  latter  action,  to  show  that  the 
plaintiff  in  the  former  action  had  taken  a  verdict  for  his  whole  debt.  In  Foster  v. 
Compton,  2  Stark.  C.  (3  E.  C.  L.  R.)  364,  it  was  doubted  whether  in  such  a  case 
the  plaintiff  was  entitled  to  recover  half  the  costs  on  production  of  the  postea, 
with  the  Master's  allocatur,  without  producing  the  judgment.  The  postea  is 
admissible  as  introductory  to  prove  what  a  witness,  since  dead,  swore  upon  the 
former  trial :  Fitton  v.  Walker,  1  Str.  162;  B.  N.  P.  243;  R.  v.  lies,  and  R.  v. 
Minns,  there  cited. — To  prove  the  day  on  which  the  court  sat  for  the  trial  at 
Nisi  Prius,  the  record  itself  must  be  produced :  lliomas  v.  Ansley,  6  Esp.  C.  80. 
Where,  however,  there  are  proper  materials,  the  postea  may  be  indorsed  in 
court,  nunc  pro  tunc:  R.  v.  Hammond  Page,  2  Esp.  C.  650;  and  6  Esp.  C.  83. 
But  where  a  juror  has  been  withdrawn,  and  the  cause  referred,  such  circum- 
stances Avill  not  be  allowed  to  be  indorsed  in  court  at  the  second  trial:  Ibid. 
In  London  and  Westminster  it  is  not  the  practice,  as  in  the  country  causes,  for 
the  officer  at  the  trial  to  indorse  the  postea  ;  and  the  postea,  with  a  minute  of 
of  the  verdict  indorsed  by  the  officer,  is  evidence  to  show  that  the  same  cause 
came  on  for  trial:  R.  v.  Broivne,  Moo.  &  M.  (22  E.  C.  L.  R.)  315. 

•»  1  Str.  162;  Hardr.  118. 

«  Forter  v.  Cooper,  6  C.  &  P.  (25  E.  C.  L.  R.)  354 ;  R.  v.  Bellamy,  R.  &  M. 
(21  E.  C.  L.  R.)  171.    So  to  prove  that  an  appeal  was  heard,  a  record  should  be 
24 


391  JUDICIAL     DOCUMENTS. 

coukl  only  be  proved  by  tbe  record,  and  neither  the  calendar  signed 
by  tlie  clerk  of  assize,  nor  the  evidence  of  a  person  who  heard  the 
sentence  passed,  is  admissible  to  show  that  a  prisoner  under  sentence 
is  in  lawful  custody/  Proof  by  the  judgment-book  is  not  sufficient, 
although  the  record  may  not  have  been  made  up,  and  although  the 
party  interested  in  the  judgment  is  a  stranger.^  But  now,  in  order 
to  reduce  the  expense  attendant  upon  the  proof  of  the  criminal  pro- 
ceedings, it  is  provided,  by  14  &  15  Vict.,  c,  99,  s.  13,  "  that  when- 
ever, in  any  proceeding  whatever,  it  may  be  necessary  to  prove  the 
trial  and  conviction  or  acquittal  of  any  person  charged  with  any 
indictable  oifence,  it  shall  not  be  necessary  to  produce  the  record  of 
the  conviction  or  acquittal  of  such  person,  or  a  copy  thereof,  but  it 
shall  be  sufficient  that  it  be  certified  or  purport  to  be  certified  under 
the  hand  of  the  clerk  of  the  court,  where  such  conviction  or  acquittal 
r*3921  *^°^  place,  or  by  the  deputy  of  such  clerk  or  other  officer, 
that  the  paper  produced  is  a  copy  of  the  *record  of  the  in- 
dictment, trial,  conviction  and  judgment  or  acquittal,  as  the  case  may 
be,  omitting  the  formal  parts  thereof.  " 

Proceedings  in  Chancery  by  bill  and  answer  are  not  records, 
because  they  are  not  precedents  of  justice,  being  decided  according 
to  the  justice  and  equity  of  each  particular  case ;'  and  therefore  they 
may  themselves  be  given  in  evidence,''  independently  of  any  decree. 
But  regularly,  in  order  to  prove  the  facts  on  which  a  decree  professes 
to  be  founded,  the  proceedings  on  which  it  is  founded  ought  to  be 
read  in  evidence.'  And  it  has  been  held  at  Nisi  Prius  that  a  plain- 
tiff cannot  give  in  evidence  an  order  for  an  injunction  obtained  by 
the   defendant,    restraining   him   from   suing,  without   producing  the 

produced :  R.  v.  Ward,  6  C.  &  P.  (25  E.  C.  L.  R.)  366  ;  unless  it  be  shown  that 
only  a  minute  book  is  kept,  as  is  usually  the  case,  and  no  record  is  made  up : 
R.  V.  Yeovelei/,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  806  ;  but  not  as  to  the  trial  of  an 
indictment:  R.  v.  Bellamy;  R.  v.  Smith,  8  B.  &  C.  (15  E.  C.  L.  R.)  841. 

'  R.  V.  Bourbon,  2  C.  &  K.  (6i  E.  C.  L.  R.)  366. 

8  Ayrey  v.  Davenport,  2  N.  R.  474,  and  srtpra,  note  («). 

'  Bac.  Abr.,  Ev.  F. 

''  Bac.  Abr.,  Ev.  F.  But  the  bill  is  no  evidence  of  the  facts  stated  in  it,  even 
a;;ainst  the  party  filing  it,  they  being  the  mere  suggestions  of  the  pleader: 
Boileau  v.  Rutlin,  2  Ex.  665;  sqq  post. 

'  Com.  Dig.,  tit.  Evid.  A.  4.  Upon  a  question  as  to  the  right  of  the  deputy 
oyster-meters  of  .unloading,  &c.,  all  oysters  brought  within  the  port  of  London, 
a  decree  in  equity  upon  the  same  right  was  admitted  in  evidence,  without  put- 
ting in  the  dcpoNitions,  although  referred  to  in  the  decree,  but  it  was  held  that 
when  the  decree  had  been  put  in,  either  party  was  entitled  to  read  the  deposi- 
tions :   Layburn  v.  Crisp,  4  M.  &  W.  320. 


PROBATE — LETTERS    OF     ADMINISTRATION.  392 

bill  and  answer."  A  decretal  order  in  paper  may  be  read  in  proof 
of  the  bill  and  answer,"  or  without  such  proof,  if  they  be  recited  in  the 
order,"  The  *decree  itself  is  proved  either  by  means  of  an  ex-  r*oQo-| 
emplification,  an  examined  copy,  or  decretal  order  in  paper.P 

A  sentence  of  the  Spiritual  Court  of  a  divorce  d  mensd  et  thoro 
has  been  received  as  evidence,  without  proving  the  libel  and  other 
proceedings.''  But  a  decree  of  the  Court  of  Arches  for  alimony  is 
not  admissible,  without  proof  of  the  proceedings  in  the  suit ;  and 
where  a  suit  is  removed  upon  appeal  to  the  Court  of  Arches,  the 
judgment  of  that  court  is  not  admissible,  without  showing  that  court 
to  be  duly  in  possession  of  the  suit,  by  producing  the  transcript  of 
the  proceeding  sent  from  the  court  below. ''  The  minute  book  of  the 
Ecclesiastical  Court  is  evidence  erf  a  decree  for  alimony  pronounced 
in  that  court,  although  no  decree  be  drawn  up :  nothing  in  practice 
being  done  with  the  minutes  unless  the  alimony  be  not  paid.^ 

The  probate   of   a  will  consists  of  a  copy  engrossed  upon  parch - 

"  Per  Lord  Abinger  at  N.  P.  ;  Atwood  v.  Taylor  and  others,  1  M.  &  G.  {39  E. 
C.  L.  R.)  279;  but  see  Blower  v.  Hollis,  1  Cr.  &  M.  393. 

°  Com.  Dig.,  Ev.  C.  1. 

°  Com.  Dig.,  Ev.  C.  1,  Wheeler  v.  Lowth,  there  cited  ;  but  see  1  Keb.  21.  And 
in  the  Wharton  Peerage  case,  12  CI.  &  F.  995,  a  decree  grounded  on  the  admis- 
sion in  the  answers,  and  containing  the  whole  substance  of  the  bill  and  answer, 
was  admitted  to  pi'ove  the  identity  of  a  person  through  whom  the  claimant 
traced  his  descent.  But  see  Atwood  v.  TaT/lor,  1  M.  &  G.  (29  E.  C.  L.  R.)  279, 
supra.  It  has  been  said,  that  if  a  party  wish  to  avail  himself  of  the  decree  only, 
and  not  of  the  answer,  he  may  give  the  decree  in  evidence  under  the  seal  of  the 
court,  and  enrolled,  without  producing  the  answer ;  and  the  opposite  party  will 
be  at  liberty  to  show  that  the  point  in  issue  was  not  the  same  as  the  present 
issue :  B.  N.  P.  235.  And  as  a  general  rule,  the  whole  record  ought  to  be  pro- 
duced :  Com.  Dig.,  Ev.  A.  4.  So  in  proof  of  a  sentence  in  the  Admiralty  Court 
on  a  libel  and  answer,  or  the  judgment  of  a  court  baron,  the  proceedings  ought 
to  be  produced:  Com.  Dig.,  tit.  Evidence,  C.  1.  Where  the  mere  object  is  to 
prove  the  fact  that  a  decree  was  made,  or  made  and  reversed,  and  not  to  prove 
the  contents,  proof  of  the  previous  proceedings  is  not  necessary:  Jonas  v.  Ran- 
dall, Cowp.  17.  And  see  per  Bayley,  B.,  in  Blower  v.  Hollis,  1  Cr.  &  M.  396. 
And  in  the  case  of  an  ancient  decree,  where  the  bill  and  answer  have  been  lost, 
the  decree  alone  is  admissible. 

p  Com  Dig.,  Ev.  C.  1  ;  see  Blower  v.  Hollis,  1  Cr.  &  M.  393. 

^  Stedman  v.  Gooch,  1  Esp.  C.  4.  Lord  Kenyon,  C.  .J.,  and  afterwards  in 
K.  B. 

■■  Leake  v.  Marquis  of  Westmeath,  2  M.  &  Rob.  394.  Per  Tindal,  C.  J.,  ap- 
parently overruling,  Stedman  v.  Gooch. 

'  Houliston  V.  Smyth,  2  C.  &  P.  (12  E.  C.  L.  R.)  25 ;  see  R.  v.  Yeuveley,  8  Ad. 
&  E.  (35  E.  C.  L.  R.)  806.  The  practice  of  the  court  is  provable  by  oral  evi- 
dence :  Beaurain  v.  Scott^  3  Camp.  388. 


393  JUDICIAL     DOCUMENTS. 

ment,  under  the  seal  of  the  ordinary,  with  a  certificate  of  its  having 
been  duly  proved.'     A  probate  is  therefore  good  evidence  of  the  will, 
as  to  the  personal  estate." 
r^:OQi-|        *When    administration    is    granted    by   the    Ecclesiastical 

Court,  it  does  not  grant  an  exemplification,  but  only  a  cer- 
tificate that  administration  was  granted.*  And  therefore,  when  a 
lessee  pleads  an  assignment  of  a  term  from  an  administrator,  such 
certificate  is  good  evidence.^  So  would  be  the  book  of  the  Eccle- 
siastical Court,  wherein  was  entered  the  order  for  granting  adminis- 
tration.'' So  the  original  book  of  acts,  directing  letters  of  adrainis- 
tion  to  be  granted  with  the  Surrogate's  fiat,  is  evidence  of  the 
title  of  the  party  to  whom  administration  is  directed  to  be  granted, 
without  producing  the  letters  of  a<3ministration  themselves,  notwith- 
standing subsequent  letters  of  administration  granted  to  another, 
the  first  not  being  recalled.*  So  an  examined  copy  of  the  act-book, 
stating  that  administration  was  granted  to  the  defendant,  is  proof 
that  he  was  administrator,  in  an  action  against  him,  as  such,  with- 
out notice  to  produce  the  letters  of  administration.''  So  the  act  of 
the  court  endorsed  upon  the  will  is  as  good  evidence  with  respect  to 
the  title  of  personalty  as  the  probate  itself."  But  although  the  pro- 
bate of  the  will  has  been  produced,  the  will  itself  cannot  be  read  in 
evidence  upon  the  mere  production  of  it  by  the  ofl5cer  of  the  Eccle- 
|-^qQr-|    siastical  Court,*^  without  some  endorsement  upon  it  for  *the 

purpose  of  authentication.     In  an  action   against  an  execu- 

»•  3  Bac.  Abr.,  tit.  Executors  ;  B.  N.  P.  246.  "  B.  N.  P.  246. 

^  B.  N.  P.  246;  Knapton  v.  Cross,  8  Geo.  II.,  K.  B. ;  Bac.  Abr.,  Ev.  F.  ;  1 
Lev.  25. 

y  B.  N.  P.  246. 

'  Ibid.,  and  Elden  v.  Keddell,  8  East  187  ;  Bac.  Abr.,  Ev.  F.  631  ;  Polhill  v. 
Polhia,  A.  D.  1701. 

"  Elden  v.  Keddell,  8  East  187. 

"  Davis  V.  Williams,  13  p]ast  232;  Kai/  v.  Clarke,  Ibid.  238. 

'  Denn  v.  Barnard,  Cowp.  595.  Where  by  the  practice  of  the  Ecclesiastical 
Court  no  book  was  kept,  but  a  memorandum  only  endorsed  or  entered  at  the 
foot  of  the  original  will  by  the  officer  of  the  court,  it  was  held,  that  the  pro- 
duction of  the  will  with  such  memorandum  was  sufficient  evidence  of  the 
executor's  title  ;  and  also,  that  an  extsmplification  of  several  letters  of  admin- 
istration relating!;  to  the  same  estate  on  one  parchment,  with  one  'M.  stamp, 
was  sufficient:  Doe  v.  GunniiKj,  2  Nev.  &  P.  260  ;  7  Ad.  &  E.  (34  E.  C.  L.  R.) 
240. 

"*  It.  v.  Barnes,  Stark.  C.  (2  E.  C.  L.  R.)  243,j9er  Raymond,  C.  J.,  in  Coe  v. 
Westernham,  Norfolk  vSummer  Assizes  1725  ;  Sel.  N.  P.,  11th  ed.  814.  "  I  can- 
not allow  the  original  will  to  prove  property  in  the  executor;  the  probate 
must  be  produced,  for  perhaps  the  Ecclesiastical  Court  will  not  allow  this  to 


INFERIOR     COURTS — MAGISTRATES.  395 

tor  for  money  had  and  received,  after  notice  had  been  proved  to  pro- 
duce the  probate,  it  was  hehJ  that  the  original  will  produced  by  the 
officer  of  the  Ecclesiastical  Court,  and  bearing  the  seal  of  that 
court,  and  endorsed  as  the  instrument  on  which  the  probate  was 
granted,  with  the  value  of  the  effects  sworn  to,  was  admissible  as 
secondary  evidence.*  Where  a  probate  has  been  lost,  an  examined 
copy  is  evidence  to  prove  the  party  to  be  the  executor,  for  the  pro- 
bate is  an  original  document  of  a  public  nature.^  In  such  case  it  is 
the  practice  of  the  Ecclesiastical  Court  to  grant,  not  a  second  pro- 
bate, but  an  exemplification  only.^ 

Although  it  be  a  general  rule  that  the  probate  or  ledger-book  be 
no  evidence,  except  in  relation  to  the  personal  estate,  yet  the  ledger 
may  in  some  instances  be  secondary  evidence  as  to  a  devise  of  real 
estate ;  as  where,  in  an  avowry  for  a  rent-charge,  the  avowant  could 
not  produce  the  will  under  which  he  claimed,  that  belonging  to  the 
devisee  of  the  land  ;  but  producing  the  Ordinary's  register  of  the 
will,  and  proving  former  payments,  it  was  holden  to  be  sufficient 
evidence  against  the  plaintiff,  who  was  devisee  of  the  land  charged. ** 
Since  the  ledger-book  is  *a  roll  of  court,  it  seems  that  a  r:|=oq/:»-] 
copy  is  admissible  evidence.'  Although  a  probate  be  no 
evidence  to  prove  the  contents  of  a  will,  in  order  to  establish  a  pedi- 
gree, since  it  is  but  a  copy,  and  the  seal  of  the  court  does  not  prove 
it  to  be  a  true  copy,  unless  the  suit  relates  only  to  the  personal 
estate ;  yet  the  ledger-book,  it  seems,  in  such  cases,  is  admissible  evi- 
dence, as  being  a  roll  of  court,  and  made  under  the  authority  of  the 
Spiritual  Court,  to  prove  such  a  relation.*^ 

be  the  testator's  will.  Besides,  until  probate,  a  man  dies  intestate;  and  if 
his  executor  die  before  probate,  his  executor  shall  not  be  executor  to  the  first 
testator." 

«  Gorton  v.  Dyson,  1  B.  &  F.  (5  E.  C.  L.  R.)  219  ;  and  qii.,  whether  it  would 
not  be  good  original  evidence.  The  probate-act  book,  containing  an  entry 
that  the  will  was  proved  and  probate  granted,  was  held  to  be  the  original  and 
primary  evidence  ;  and,  therefore,  to  be  sufficient  proof  that  the  parties  were 
executors,  although  the  probate  was  not  produced,  nor  any  excuse  offered  for 
its  non-production  :  Cox  v.  Aliingham,  1  Jac.  515  ;  and  see  Garrell  v.  Lister,  1 
Lev.  25. 

•'  Hoe  V.  Nelthorpe,  3  Salk.  154 ;  R.  v.  Haines,  Skinn.  584.  In  B.  v.  Haines, 
Comb.  337,  Holt,  C.  J.,  said,  that  a  copy  of  a  probate  was  not  evidence,  because 
it  was  a  copy  of  a  copy. 

s  Shepherd  v.  Shor those,  Str.  412. 

»  Ca.  K.  B.  375 ;  B.  N.  P.  246. 

'  B.  N.  P.  246,  where  it  is  said  that  the  contrary  had  been  often  ruled,  on  the 
mistaken  ground  that  the  ledger  was  a  copy. 

"^  B.  N.  P.  246  ;  R.  V.  Ramsbottom,  1  Leach  C.  C.  L.  25,  in  note. 


396  JUDICIAL     DOCUMENTS. 

To  prove  that  the  probate  has  been  revoked,  an  entry  of  the  revo- 
cation in  the  book  of  the  Prerogative  Court,  which  is  the  record  of 
the  proceedings  of  the  court,  is  good  evidence.' 

A  judgment  of  an  inferior  court,  not  of  record,  is  usually  estab- 
lished by  the  production  of  the  book  containing  the  minutes  of  the 
proceedings  of  the  court  from  the  proper  places  of  deposit,  proved 
to  be  such  by  oral  testimony.  Copies  of  court-rolls,  and  of  proceed- 
ings in  the  Ecclesiastical  and  inferior  Civil  Courts,  are  also  evidence, 
since  the  originals  are  public  documents.™  And  it  is  said,  that  it 
is  not  "usual  for  inferior  courts  to  draw  up  their  records  in  form,  but 
only  short  notes,  copies  of  those  short  notes  are  good  evidence."  It 
r*^Q71  'ipP^'^rs  also,  that  in  the  *case  of  an  inferior  court,  such  as 
a  Court-baron,  Hundred,  or  County  Court,  evidence  should 
be  given  of  the  proceedings,"  previous  to  the  judgment,  as  well  as  of 
the  judgment  itself,^  in  order  to  show  that  the  proceedings  were 
regular.  In  an  action  for  a  malicious  arrest,  on  process  out  of  the 
Sheriff's  Court  in  London,  it  was  held  that,  in  order  to  prove  the 
averment  that  the  former  suit  was  wholly  ended,  etc.,  it  was  suffi- 
cient to  show  an   entry  in  the  minute-book  of  "withdrawn  by  the 

1  Ibid. 

"^  12  Vin.  Abr.  A.,  b.  26,  pi.  49.  By  the  County  Courts  Act,  9  &  10  Vict.  c. 
95,  s.  Ill,  the  book  kept  by  the  clerk,  or  a  copy  of  any  entry  in  it  purporting 
to  be  signed  and  certified  as  a  true  copy  by  the  clerk,  and  sealed  with  the  seal 
of  the  court,  is  declared  to  be  evidence  of  the  proceedings  and  their  regularity. 

"PerHale,  in  R.  v.  Haines,  12  Vin.  Abr.  A.,  b.  26,  pi.  49  ;  Comb.  337  ;  Fisher 
V.  Lane,  2  B.  L.  834,  per  Lord  Tenterden ;  R.  v.  Smith,  8  B.  &  C.  (15  E.  C.  L. 
R.)  341.  But  see  Pitcher  v.  Rinter,  12  Vin.  Abr.  A.,  b.  48,  contra;  Dyson  v. 
Wood,  3  B.  &  C.  (10  E.  C.  L.  11.)  449.  As  to  orders  of  quarter  sessions  (not 
being  proceedings  on  indictments,  see  ante,  p.  267),  they  may  be  proved  by  the 
minute-book,  where  no  other  formal  record  is  drawn  up:  R.  v.  Yeoveley,  8  Ad. 
&.  E.  (35  E.  C.  L.  R.)  806  ;  R.  v.  Mortlock,  7  Q.  B.  (53  E.  C.  L.  R.)  459 ;  but  it 
should  be  shown  that  a  more  formal  record  is  not  kept:  R.  v.  Ward,  6  C.  &  P. 
(25  E.  C.  L.  R.)  354;  and  see  note  (p). 

"  Com.  Dig.,  tit  Evidence,  C.  3  ;  Fisher  v.  Lane,  2  Bl.  834;  Arundell  v.  White, 
14  East  216. 

P  In  Daicson  v.  Gregory,  7  Q.  B.  (53  E.  C.  L.  R.)  766  :  the  judgment  of  a  court 
baron  in  a  plea  of  debt  was  held  to  have  been  sufficiently  proved  by  the  court 
book  containing  a  minute  of  the  judgment  in  tne  form  of  a  caption,  the  names 
of  the  suitors,  judge,  and  deputy  steward,  and  the  parties,  with  a  memorandum 
in  these  words:  "  Venire  facias  executed.  Verdict  for  plaintiff  and  final  judg- 
ment entered  up  for  debt,  4^5.  14s.  9rf. ;  costs,  lU.  lOs.  lOtZ.  ;  total,  21Z.  5s.  Id.  ;" 
the  deputy  steward  stating  that  he  was  present  at  the  trial,  and  that  it  was  not 
UHual  to  draw  up  a  more  formal  judgment,  and  a  levari  facias  having  issued  re- 
citing a  judgment  corresponding  with  the  minute.  As  to  the  new  county  courts, 
see  supra,  note  {in). 


AWARDS — FOREIGN     JUDGMENTS.  397 

plaintiff's  order,"  opposite  to  the  entry  of  the  plaint,  and  to  prove 
that  it  was  the  course  of  the  court  to  make  such  an  entry  upon  an 
abandonment  of  the  suit  by  a  plaintiff.'' 

It  has  been  said  that  when  actions  are  brought  against  justices  of 
the  peace,  they  must  show  the  regularity  of  their  convictions,  and 
that  the  informations  upon  which  their  convictions  were  founded  must 
be  produced  and  proved  in  court.'  But  it  seems  that  the  conviction 
itself,  when  proved  under  the  hand  and  seal  (if  necessary)  of  the 
magistrate,  is  sufficient  evidence  that  the  judgment  *  which  rt-qno-i 
it  recites  was  given. ^  In  the  case  of  Massey  v.  Johnson,*'  it 
was  held  that  a  magistrate  might  justify  by  virtue  of  a  conviction  of 
the  plaintiff  as  a  vagrant,  although  the  warrant  of  commitment 
alleged  that  the  plaintiff  had  been  charged  on  the  oath  of  T.  S.,  and 
in  fact  no  charge  had  been  made  by  T.  S.,  but  the  defendant  had 
been  convicted  upon  the  information  of  another  person,  and  although 
the  conviction  itself  was  informal.  But  it  was  observed,  that  the 
case  would  have  assumed  a  very  different  shape  if  there  had  been  no 
information  to  ground  the  conviction."  In  the  case  of  Gray  v.  Cook- 
son  and  others,'^  it  was  held  that  the  defendant  having  jurisdiction 
over  the  subject-matter,  was  protected  by  a  conviction  drawn  up  after 
the  commencement  of  the  action. 

By  12  Vict.  c.  11,  s.  4,  on  an  indictment  against  a  person  who 
has  been  twice  summarily  convicted,  under  the  Juvenile  Offenders^ 
and  Malicious  Injuries^  Acts,  a  copy  of  any  such  conviction  certi- 
fied by  the  proper  officer  of  the  General  or  Quarter  Sessions  to 
which  it  shall  have  been  returned,  or  proved  to  be  a  true  copy,  shall 
h&  sufficient  evidence  to  prove  such  conviction. 

•*  Arundell  v.  White,  14  East  216  ;  see  Mackallei/'' s  case,  9  Co.  69,  where  the 
brief  note  of  the  plaint  was  as  follows  :  "  ss.  J.  M.  &  R.  R.  Debt  500Z.,  pledges 
C.  D.  by  R.  F.  serjeant,"  and  was  held  to  be  sufficient  to  warrant  the  arrest. 

'^  Str.  710.  The  discussion  of  this  point  in  such  actions,  which  is  one  of  con- 
siderable nicety,  seems  to  be  rendered  unnecessary  by  the  recent  statute  11  & 
12  Vict.  c.  44,  ante,  p.  370,  note  {n).     And  see  Vol.  II.,  tit.  Justices. 

'  Per  Holt,  C.  J.,  Fuller  v.  Foich,  Holt  287 ;  Garth.  346  ;  Ilardr.  478. 

'  12  East  67. 

"  Per  Le  Blanc,  J.,  Ibid. 

''16  East  13.  A  formal  conviction  may  be  drawn  up  at  any  time,  unless  a 
defective  one  has  been  quashed,  or  the  party  discharged  on  habeas  corpus  : 
Chancy  v.  Payne,  1  Q.  B.  (41  E.  C.  L.  R.)  712 ;  R.  v.  Turk,  10  Q.  B.  (59  E.  C.  L. 
R.)  540 ;  or  perhaps  a  prior  one  has  been  filed  at  quarter  sessions.  And  see 
now  11  &  12  Vict.  cc.  43  and  44. 

y  In  England,  10  &  11  Vict.  c.  82 ;  in  Ireland,  11  &  12  Vict.  c.  59. 

»  7  &  S  Geo.  IV.  c.  30:  in  Ireland,  9  Geo.  IV.  c.  56. 


398  JUDICIAL     DOCUMENTS. 

An  Act  of  Parliament,  in  making  certified  copies  evidence  of  the 
proceedings  of  a  court,  does  not  take  away  the  right  of  proof  by  the 
production  of  the  originah* 

Where  the  parties  have  submitted  themselves  to  the  jurisdiction 
of  an  arbitrator  appointed  by  themselves,  his  decision,  as  has  been 
r*"qQn    observed,  will  be  conclusive  upon  the  *subject-matter   to  the 

'  extent  of  his  authority.''     In  order  to  establish  his   award  or 

judgment,  it  will  be  necessary  to  prove  his  authority  by  proof  of 
the  submission  bonds,  or  other  written  or  parol  authority,  and  to 
prove  the  due  making  of  the  award. *=  And  the  agreement  of  sub- 
mission will  not  be  proved,  even  by  the  rule  of  court  under  9  &  10 
Will.  III.,  c.  15,  s.  1.  For  the  rule  of  court  being  an  ex  parte  pro- 
ceeding, and  given  by  the  statute  merely  for  the  purpose  of  enforc- 
ing performance  in  a  summary  manner,  the  submission  by  agreement 
ought  to  be  proved  like  any  other  contract. "^ 

A  foreign  judgment  should  be  authenticated  by  an  exemplification 
or  copy  under  the  seal  of  the  court.^  In  such  case  it  formerly  was 
not  sufficient  to  prove  the  handwriting  of  the  judge,  without  also 
proving  that  the  seal  affixed  to  it  is  the  seal  of  court.*'  And  if  a 
colonial  court  was  proved  to  have  no  seal,  other  proof,  as  by  the  sig- 
nature of  the  judge,  was  required  to   entitle  it  to  credit.^     It  is  not 

'  So  held  in  reference  to  the  Insolvent  Act,  7  Geo.  IV.  c.  57 ;  Northam  v.  La- 
touche,  4  C,  &  P.  (19  E.  C.  L.  R.)  140. 

**  Supra,  p.  349 ;  and  see  Doe  v.  Rosser,  3  East  11. 

"  See  Vol.  II.,  tit.  Award. 

^  Berney  v.  Read,  7  Q.  B.  (53  E.  C.  L.  R.)  79. 

*  By  statute  14  &  15  Vict.  c.  99,  s.  7,  judgments,  decrees,  ordars,  and  other 
judicial  proceedings  of  any  court  of  justice,  in  any  foreign  state  or  British  colony, 
and  all  affidavits  and  other  legal  documents  filed  or  deposited  in  any  such  court, 
may  be  proved  by  a  copy,  but  such  copy  must  purport  either  to  be  sealed  with 
the  seal  of  the  foreign  or  colonial  court,  or  if  it  have  no  seal,  to  be  signed  by  the 
judge,  or  one  of  the  judges  of  the  court,  who  shall  attach  to  his  signature  a  state- 
ment on  the  copy  that  the  court  has  no  seal,  and  if  the  copy  purport  to  be  so 
sealed  or  signed  it  shall  be  admitted  without  the  proof  of  the  seal,  or  signature, 
or  of  the  truth  of  statement  attached  to  it,  or  of  the  judicial  character  of  tlie  per- 
son signing.     See  Appendix. 

f  Henry  v.  Adcy,  3  East  221  ;  Black  v.  Lord  Braybrooke,  2  Stark.  C.  (3  E.  C. 
L.  R.)  7  ;  Appleton  v.  Lord  Braybrooke,  2  Stark.  C.  (3  E.  C.  L.  R.)  6  •,  9  Mod. 
66  ;  Alves  v.  Bunbnry,  4  Camp.  28  ;  Buchanan  v.  Backer,  1  Camp.  63  ;  Flindt 
y.  Atkins,  3  Camp.  215.  If  a  colonial  court  jiossess  a  seal,  it  ought  to  be  used, 
although  HO  much  worn  as  no  longer  to  make  any  impression:  Caven  v.  Stewart, 
1  Stark.  C.  (2  E.  C.  L.  R.)  525. 

*  Appleton  v.  Loi-d  Braybrooke ;  Alves  v.  Bunbnry,  supra. 


J  U  D  G  M  E  N  T — H  OW     REBUTTE  D — R  E  V  E  R  S  E  D.  400 

sufficient  to  produce  what  purports  to  be  a  copy  *untler  the    r^^Qn-i 
seal  of  one  who  is  proved  to  be  clerk   of  the  court.'' '     A 

^  Appleion  v.  Lord  Braybrooke ;  Alves  v.  Bunbicri/,  supra. 

^  Copies  of  the  proceedino;s  op  decrees  of  foreign  courts  or  tribunals  though 
under  the  hands  and  seals  of  the  officers  of  such  courts,  are  not  of  themselves 
evidence,  but  must  be  proved  like  other  writings:  Delafield  v.  Hand,  3  Johns- 
310.  A  copy  certified  under  the  seal  of  the  Secretary  of  State  of  the  kingdom 
in  which  the  tribunal  exists  is  inadmissible;  it  being  neither  a  sworn  copy,  nor 
unless  it  appear  that  the  secretary  has  officially  the  custody  of  records  of  that 
description,  an  office  copy  :  Vandevoort  v.  Smith,  2  Caines  155  ;  Church  v.  Hub- 
bard, 2  Cranch  187.  But  the  copy  of  a  sentence  of  a  foreign  court  of  Admiralty, 
under  the  seal  of  the  court,  signed  by  the  actuary  in  the  absence  of  the  registrar, 
accompanied  with  proof  of  the  seal  and  signature,  was  held  to  be  sufficiently 
authenticated:  Garden  v.  Columbian  Ins.  Co.,  7  Johns.  514.  And  a  copy  cer- 
tified under  the  seal  of  the  court  by  the  deputy  registrar,  -v^hose  official  charac- 
ter is  certified  by  the  judge  of  the  court  and  that  of  the  judge  by  a  notary  public, 
is  admissible  :  Yeaton  v.  Fry,  5  Cranch  335.  But  it  is  not  admissible  without 
the  judge's  certificate  that  he  is  the  registrar:  Spegail  v.  Perkins,  2  Root  274. 
Foreign  judgments  are  authenticated  :  1st.  By  an  exemplification  under  the 
great  seal.  2d.  By  a  copy  proved  to  be  a  true  copy.  3d.  By  the  certificate  of 
an  officer  authorized  by  law,  which  certificate  must  itself  be  properly  authenti- 
cated. These  are  the  usual  and  most  proper,  if  not  the  only  modes  of  verifying 
foreign  judgments.  But  if  they  are  all  beyond  the  reach  of  the  party,  other 
testimony,  inferior  in  its  nature,  may  be  received.  Per  Marshall,  C.  J.,  Church 
V.  Hubbard,  ubi  sup.  If  the  decrees  of  the  colonies  of  a  foreign  country  are  trans- 
mitted to  the  seat  of  its  government,  and  registered  in  the  department  of  state, 
a  certificate  of  that  fact,  under  the  great  seal,  with  a  copy  of  the  decree,  authen- 
ticated in  the  same  manner,  would  be  sufficient  prima  facie  evidence.  Ibid. 
See  Munford  v.  Bourne,  Anthon's  N.  P.  25.  In  Thompson  v.  Stewart,  3  Conn. 
171,  it  was  held  that  the  seal  of  a  foreign  court  of  admiralty  need  not  be  proved. 
The  seals  of  such  courts,  in  cases  under  the  laws  of  nations,  are  admitted  without 
further  authentication,  as  they  are  courts  of  the  whole  civilized  world,  and  every 
person  interested  is  a  party.  Admitted  by  counsel  on  both  sides  in  Church  v. 
Hubbard,  ubi  sup. ;  Gilb.  Ev.  22,  23  ;  1  Rob.  296.  The  public  seal  of  a  State 
or  kingdom  is  noticed  judicially  by  the  tribunals  of  other  States,  and  the  record 
of  a  judgment  authenticated  by  such  seal,  need  not  be  accompanied  with  any 
certificate  of  its  being  a  copy  under  the  signature  of  any  officer  of  the  court 
rendering  the  judgment:  Griswold  v.  Pitcairn,  2  Conn.  85  ;  Anon.,  9  Mod.  66  ; 
see  also  United  States  v.  Johns,  4  Dall.  416.  But  when  a  civil  war  rages  in  a 
foreign  nation,  and  one  part  separates  itself  from  the  old  established  government 
and  erects  itself  into  a  distinct  government,  the  courts  of  the  Union  must  view 
such  newly-constituted  government  as  it  is  viewed  by  the  legislative  and  execu- 
tive departments  of  the  government  of  the  United  States  and  before  it  is  by  them 
recognized  as  an  independent  government,  its  seal  cannot  be  allowed  to  prove 
itself;  but  it  may  be  proved  by  such  testimony  as  the  nature  of  the  case  admits  : 
United  States  v.  Palmer  et  al.,  3  Wheat.  616  ;  The  Estrella,  4  Wheat.  298.  What 
is  sufficient  evidence  to  authenticate,  in  the  courts  of  this  country,  the  sentence 
or  act  of  a  foreign  tribunal  or  government,  after  a  destruction  of  such  govern- 
ment by  revolution  or  conquest;  see  Hadjield  v.  Jameson,  2  Munf.  53.         M. 


400  JUDICIAL    DOCUMENTS. 

divorce  under  the  seal  of  a  foreign  court  is  not  evidence  without  call- 
ing persons  to  prove  the  law  of  the  country.' 

A  judgment,  decree,  or  sentence,  may  be  impeached  by  proof, 
first,  that  it  never  existed,  or  was  void  ah  initio  ;•*  secondly,  that  it 
•was  fraudulent  and  covinous  ;  thirdly,  that  it  has  been  revoked. 
First,  that  it  never  existed,  as  by  showing  that  the  alleged  probate 
was  forged  •,^  that  the  testator  had  bona  notahilia  in  another  diocese  ;^ 
that  the  testator  is  still  living  ;™  but  not  that  the  will  was  forged," 
or  that  the  testator  was  non  eomijos,"  or  that  another  is  executor,"" 
for  this  would  be  to  falsify  the  judgment. ^  Of  course  it  never 
existed  as  a  valid  sentence,  if  the  court  had  not  •jurisdiction  to  enter 
into  the  matter.''  In  trespass,  where  the  plaintiff  had  been  con- 
r*401"l  ^''^*^*^  *upon  four  convictions,  for  carrying  on  his  trade, 
upon  the  same  day,  it  was  held  to  be  a  sufficient  answer  to 
three  of  such  convictions,  that  the  justices  had  no  jurisdiction,  al- 
though the  convictions  had  not  been  quashed.^  An  ecclesiastical 
judge  is  not  liable  to  an  action,  though  he  excommunicate  a  party 
erroneously,    but  it  is    otherwise    if    he   excommunicate  not  having 

*  Ganer  v.  Lady  Lanesborongh,  Peake's  C.  17.  See  Fremoult  v.  Dedire,  1  P. 
Wms.  431 ;   Henri/  v.  Adaj,  3  East  221. 

^  No  appeal  need  be  made  against  an  order  where  the  justices  wanted  jurisdic- 
tion ;  unless  the  object  be  to  bring  an  action  of  trespass  against  them,  and  the 
plaintiff  does  not  wish  to  quash  it  in  Q.  B.  See  ante,  p.  370,  note  {n)  ;  see  Vol. 
II.,  tit.  Settlement  ;  or  against  the  proceedings  of  commissioners,  in  respect  to 
matters  as  to  which  they  had  no  authority:  Attorney- General  v.  Lord  Hotham, 

I  Turn.  &  Russ.  219. 

>=  T.  Ray.  404-6  ;  1  Sid.  359. 

'  B.  N.  P.  247  ;  Noel  v.  Wells,  1  Sid.  359 ;  1  Lev.  235,  per  Buller,  J. ;  3  T.  R. 
131 ;  5  Rep.  30;  Stokes  v.  Bate,  5  B.  &  C.  (11  E.  C.  L.  R.)  491  ;  and  see  Whyte 
V.  Rose,  3  Q.  B.  (43  E.  C.  L.  R.)  493  ;  Lysons  v.  Barrow,  2  Bing.  N.  C.  (29  E.  C. 
L.  R.)  480 ;  Huthwaite  v.  Phaire,  1  M.  k  G.  (39  E.  C.  L.  R.)  159. 

■"  Allen  V.  Dundas,  3  T.  R.  129. 

°  But  upon  an  indictment  for  forging  a  will,  it  may  be  proved  that  the  will 
was  a  forgery,  notwithstanding  the  probate  :  R.  v.  Buttery  and  Macnamara,  R. 
&  R.  C.  C.  342.  Indeed,  this  may  be  proved  in  any  legal  proceeding,  civil  as 
well  as  criminal,  for  any  purpose  but  that  of  impeaching  the  title  of  the  executor, 
upon  which  the  decision  of  the  ecclesiastical  court  is  conclusive.  In  the  case  of 
an  inferior  court  not  of  record,  the  party  may  show  that  the  cause  of  action  did 
not  arise  within  the  jurisdiction  :  Herbert  v.  Cooke,  Willes  36,  note  [a). 

"  Marriot  v.  Marriot,  1  Str.  671. 

P  StirtuKjs  case,  20  How.  St.  Tr,  473. 

'I  1  Lev.  235  ;  2  Keb.  337. 

'  R.  V.  Bolton,  1  Q.  B.  (41  E.  C.  L.  R.)  66. 

■  Crepps  V.  Durden,  Cowp.  640.     But  see,  as  to  an  action  against  the  justices, 

II  &  12  Vict.  c.  44,  ante,  p.  370,  note  (/;)• 


JUDGMENT — HOW  REBUTTED — REVERSED.      401 

jurisdiction.'  So  it  may  be  shoAvn  that  a  person  is  not  within  the 
scope  of  the  bankrupt  laws,  although  the  commissioners  have  de- 
clared him  to  be  bankrupt."  But  nothing  whicli  might  have  been 
insisted  upon  bj  way  of  appeal  against  a  sentence  can  be  urged  in 
answer  to  the  evidence  supplied  by  the  sentence ;"  and,  therefore, 
where  upon  an  indictment  for  assaulting  a  gentleman  commoner,  and 
expelling  him  from  the  gardens  of  a  college,  the  defendant  relied 
upon  a  sentence  of  expulsion,  it  was  held  to  be  no  answer,  that  a 
sufficient  number  of  members  had  not  concurred  in  the  ser)tence. 
So  it  may  be  shown  that  commissioners  having  *especial  r:):  iaqt 
poAver  by  an  inclosur^  act  to  make  an  award  have  not  pur- 
sued that  power. ^  Secondly,  that  it  was  fraudulent  or  covinous,  for 
strangers  ought  not  to  be  bound  by  such  a  proceeding.''  Accord- 
ingly, in  The  Duchess  of  Kiyigston  s  case,  it  was  resolved  that,  even 
admitting  the  sentence  in  the  Spiritual  Court  to  be  conclusive,  still 
the  effect  might  be  removed  by  showing  collusion.*  And  in  a  much 
later  case,  it  was  held,  that  a  sentence  of  divorce  from  the  first  mar- 

'  Ackerley  v.  Parkinson,  3  M.  &  S.  411.  See  also  Moody  v.  Thurston,  1  Str. 
481;  Vol.  II.,  tit.  Justices.  Brown  v.  BuUen,  1  Doug.  4U7 ;  Lord  Radnor  v. 
Reeve,  2  B.  &  P.  391. 

"  In  strictness,  the  reason  why  the  adjudication  of  the  commissioners  in  such 
cases  is  not  obligatory,  is,  that  it  is  merely  an  ex  parte  proceeding,  and  partakes 
no  more  of  the  nature  of  a  judgment,  than  the  finding  a  bill  of  indictment  by  a 
grand  jury.  Unless,  however,  it  be  contested  within  certain  periods,  the  an- 
nouncement in  the  Oazette  is  now  rendered  conclusive  in  certain  cases,  by  stat. 
12  &  13  Vict.  c.  106,  s.  233. 

^  R.  V.  Grundon,  Cowp.  315.  The  case  was  put  on  the  same  footing  with  a 
decree  in  the  Admiralty  Court,  which  must  stand  till  reversed.  Note,  the  court 
doubted  whether  Mr.  Crawford,  the  prosecutor,  was  a  member  of  Queen's  College, 
but  held,  that  even  if  he  were,  the  sentence  was  not  examinable  but  by  appeal  to 
the  visitor,  and  that  the  King's  courts  could  not  interfere.  As  to  the  general 
principle  that  a  sentence  by  the  members  of  a  college,  or  by  the  visitor  on  appeal, 
is  conclusive,  see  Phillips  v.  Bury,  Skin.  447  ;  2  T.  R.  346 ;  Dr.  Patrick'' s  case, 
1  Lev.  65;  Dr.  Wedrington'' s  case,  1  Lev.  23;  Case  of  New  Coll.,  2  Lev.  14; 
Reg.  V.  Governors  of  Darlington  School,  6  Q.  B.  (51  E.  C.  L.  R.)  082. 

y  Rex  V.  Washbrooke,  4  B.  &  C.  (10  E.  C.  L.  R.)  732.  For  the  further  con- 
sideration of  the  subject  of  jurisdiction,  especially  as  regards  the  operation  of  a 
judgment  or  sentence  to  protect  those  who  had  jurisdiction  to  pronounce  it,  see 
Vol.  II.,  tit.  Justices. 

^  Meddowcroft  v.  Huguenin,  4  Moo.  P.  C.  R.  386.  Thus,  to  a  sci.  fa.  against 
a  shareholder  in  a  company,  the  defendant  may  plead  that  the  judgment  against 
the  company  was  obtained  by  fraud :  Philipson  v.  Earl  of  Egremont,  6  Q.  B. 
(51  E.  C.  L.  R.)  587;  Bradley  \.  Eyre,  11  M.  &  W.  432;  Same  v.  Urquhart, 
Ibid.  456. 

"  20  How.  St.  Tr.  355  ;  1  Ves.  159  ;  And.  392. 


402  JUDICIAL     DOCUMENTS. 

riage,  obtained  in  Scotland  by  fraud  on  the  part  of  the  husband, 
would  be  no  bar  to  a  prosecution  for  bigamy.^  In  an  action  for 
assault  and  wounding  the  plaintiff,  it  may  be  shown  that  an  acquittal 
upon  an  indictment  charging  the  injury  as  a  felonious  wounding,  was 
fraudulent  and  collusive/  So  where  an  executor  pleads  judgments 
recovered,  the  plaintiff  may  reply  that  they  are  covinous.''  So  a 
stranger  to  a  fine  or  recovery  may  avoid  it  by  showing  collusion.* 
So  if  it  appear  on  the  face  of  the  proceedings  that  the  party  to  be 
affected  by  a  foreign  judgment,  or  by  process  of  foreign  attachment, 
was  never  summoned,  or  never  had  notice  of  the  proceeding.^  But 
r*4031  ^^  ^^  ^  general  rule  that  a  person  who  was  a  *party  to  the 
proceeding,^  or  who  might  have  been  a  party*"  to  it,  cannot 
show  collusion  in  order  to  repel  the  judgment.  Thirdly,  that  the 
judgment  has  been  reversed,'  as  that  letters  of  administration  have 
been  revoked,''  or  the  probate  repealed.'     But  an  appeal""  or  writ  of 

^  Martin  Lolh/s  case,  Russ.  &  Ry.  C.  C.  L.  237. 

<=  Crosby  v.  Leng,  12  East  409. 

^  Lloyd  Y.  Maddox,  Moore  917;  Trethetoy  v.  Acklaiid,  2  Wms.  Saund.  48,  et 
not. 

«11  Str.  262. 

^Buchanan  v.  Rucker,  9  East  192  ;  Cavau  v.  Stewart,  1  Stark.  C.  (2  E.  C.  L.  R.) 
525;  Bruce  Y.  Wait,  1  M.  &  G.  (39  E.  C.  L.  R.)  1;  Franldand  v.  McGusty,  1 
Knapp,  P.  C.  274  ;  Ferguson  v.  Malion,  11  Ad.  &  E.  (39  E.  C.  L.  R.)  179 ;  Hen- 
derson V.  Henderson,  6  Q.  B.  (51  E.  C.  L.  R.)  298  ;  Bank  of  Australasia  y  .  Mas, 
20  L.  J.,  Q.  B.  284;  and  ante,  p.  356,  et  seq.  It  is  against  natural  justice  to 
convict  a  man  without  a  summons  :  R.  v.  Cotton,  1  Sess.  C.  179  ;  1  Bott.  486  ;  1 
Burn's  J.  254,  23d  ed. ;  Docy.  Gartham,  1  Bing.  (8  E.  C.  L.  R.)  357;  E.  v. 
Gaskin,  8  T.  R.  309 ;  Williams,  v.  Lord  Bagot,  3  B.  &  C.  (10  E.  C.  L.  R.)  772 ; 
in  error.  The  husband  need  not  be  summoned  in  case  of  a  criminal  proceeding 
against  the  wife:  R.  v.  Ellen  Taylor,  3  Burr.  1681.  In  R.  v.  Clegg,  Str.  475,  an 
order  of  bastardy  made  at  sessions  set  out  no  summons,  but  the  court  said  they 
would  presume  one. 

«  Prtidhum  v.  Phillips,  Str.  2  ;  Ambler  763  ;  Bessy  v.  Windham,  6  Q.  B.  (51  E. 
C.  L.  R.)  166;  but  see  Smith  v.  Nicholls,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  222; 
Phillipson  v.  F.arl  of  Egremont,  6  Q.  B.  (51  E.  C.  L.  R.)  587. 

^Mayo  V.  Broione,  11  St.  Tr.  213. 

'  Where  a  judgment  by  default  in  an  inferior  court  has  been  removed  by 
habeas,  the  judgment  below  is  not  evidence  against  the  defendant:  Boltings  v. 
Firby,  9  B.  &  C.  (17  E.  C.  L.  R.)  762.  So  where,  on  a  case  reserved,  the  judges 
held  a  former  indictment,  on  which  the  party  had  been  convicted,  bad:  R.  v. 
Reader,  4  C.  &  P.  (19  E.  C.  L.  R.)  245. 

k  Sid.  359. 

'3  Lev.  135;  but  note,  such  repeal  would  not  invalidate  a  payment  to  the 
executor :  Allen  v.  Dundas,  3  T.  R.  1 25. 

"  Bird's  case,  2  Den.  C.  C.  94. 


INQUISITIONS.  403 

error"  against  a  sentence  is  no  answer  to  the  sentence  ;  and  an  at- 
tainder standing  unreversed,  although  founded  upon  an  insufficient 
indictment,  is  valid  and  pleadable  in  bar."  Other  evidence  to  im- 
peach the  truth  of  a  record  is  inadmissible ;  it  is  not  competent  to 
a  party  to  prove  that  a  verdict  was  improperly  entered  by  mistake. •" 
Thus  far  of  judgments,  decrees,  and  verdicts.  The  second  r;(:  inj^-i 
*class  into  which  judicial  documents  are  divided  consists  of 
inquisitions,  depositions,  and  examinations  taken  in  the  course  of 
a  judicial  proceeding.  Such  inquests  as  are  of  a  public  nature,  and 
taken  under  competent  authority,  to  ascertain  a  matter  of  public 
interest,  are,  upon  principles  already  announced,''  admissible  in 
evidence  against  all  the  world.  They  are  very  analogous  to  adjudi- 
cations in  rem,  being  made  on  behalf  of  the  public ;  no  one  is  pro- 
perly a  stranger  to  them  ;  and  all  who  can  be  affected  by  them  usually 
have  the  power  of  contesting  them.  In  general,  where  property  is 
vested  in  the  Crown  upon  an  inquest  of  office,  by  a  coroner,  escheator"" 
or  other  officer  of  the  Crown,  the  parties  affected  by  the  inquest  have 
a  right  of  traverse  reserved  to  them,  or  they  may  proceed  by  nions- 
trans  de  droit.  Upon  a  finding  of  felo  de  se,  the  executor  or  adminis- 
trator may  remove  it  into  the  Court  of  King's  Bench,  and  traverse 
it  ;*  for  it  would  be  hard  that  he  should  be  concluded  by  an  inquisi- 
tion, which  is  nothing  more  than  an  inquest  of  office,  taken  behind 
his  back.*  By  the  express  provisions  of  many  statutes,  inquests  of 
office  before  escheators  are  required  to  be  held  in  a  public  open  place, 
and  every  one  is  to  be  heard  in  evidence."     And  by  the  provisions  of 

°  Hervei/s  case,  11  St.  Tr.  207,  212  ;  Ann.  11  ;  Doe  dem.  Tatham  v.  Wright,  10 
A.  &E.  (37  E.  C.  L.  K.)  763. 

0  4  Co.  45  ;  2  Hale  251 ;  Price  v.  Oldjield,  And.  222 ;  2  Sid.  359.  An  execution 
on  an  erroneous  judgment  is  good  till  reversed:  1  Ld.  Rayni.  546.  An  accessory 
cannot  take  advantage  of  error  in  the  judgment  against  the  principal:  1  Hale 
625  ;  R.  V.  Baldwin,  3  Camp.  265 ;  and  see  Holmes  v.  Walsh,  7  T.  R.  458. 
Judgment  against  the  husband  for  treason,  not  reversed,  sufficient  to  deprive 
the  wife  of  her  dower :  per  Lawrence,  J.,  Ibid. 

P  Reed  v.  Jackson,  1  East  355. 

1  Ante,  p.  286,  et  seq.,  and  see  the  cases  there. 

"■  See  as  to  the  writ  of  escheat,  the  stat.  1  Hen.  VIII.  c.  8.  The  inquisition 
on  such  a  writ  is  evidence  to  show,  according  to  the  finding  of  the  jury,  that 
the  party  died  without  heirs. 

*  1  Hale,  P.  C.  416-17-,  Barclay's  case,  Easter,  45  E.  3;  but  Ld.  Coke  held 
otherwise,  8  Inst.  55.  Every  thing  done  under  it  is  traversable :  Garnett  v. 
Ferrand,  6  B.  &  C.  (13  E.  C.  L.  R.)  611. 

'  According  to  Lord  Hale,  1  P.  0.  416,  417  ;  East's  P.  C.  389. 

"  34  Edw.  III.,  c.  13  ;  36  Edw.  IIL,  c.  13  ;  1  Hen.  VIII.,  c.  8  ;  2  &  3  Edw.  VI., 
c.  8  ;  3  Comm.  260. 


404  JUDICIAL     DOCUMENTS. 

these  statutes  the  remedy  by  traverse  and  monstrans  de  JroiYhas  been 
much  enlarged/  Upon  the  same  principle,  upon  the  execution  of  a 
writ  of  extent,  one  who  claims  property  in  the  goods  which  are  in 
possession  of  the  defendant  may  assert  his  claim  before  the  sheriff, 
r^Ar\n-\  and  cross-examine  the  witness  *adduced  by  the  prosecutor/ 
But  still  it  seems  that  the  finding  of  a  fugam  fecit  by  the 
coroner's  inquisition  against  one  who  occasioned  the  death  of  another, 
is  conclusive,^  although  a  jury  upon  the  trial  find  otherwise  ;"  yet, 
upon  principle,  the  traverse  ought  to  be  admitted  in  that  case  as  well 
as  upon  the  finding  a  party  feJo  de  se.^ 

Since  then  the  usual  effect  of  such  inquest  of  office  is  to  vest  the 
property  in  the  Crown,  reserving  to  the  party  affected,  in  most  in- 
stances, a  right  of  traverse,  the  consequence  seems  to  be,  that  such 
inquisition,  standing  undisputed  and  unreversed,  would  be  conclusive 
as  to  the  right  of  property,  not  only  as  between  any  claimant  and  the 
Crown,  but  also,  as  in  the  case  of  Toomes  v.  Utherington,"  between 
any  other  parties.  The  plaintiff  in  that  case  sued  an  administrator  of 
Toomes,  upon  a  judgment  recovered  by  the  intestate  against  the  de- 
fendant ;  the  defendant  pleaded  that  the  intestate  was  felo  de  se, 
whereby  the  judgment  was  forfeited  ;  the  plaintiff  replied  a  subse- 
quent statute  of  pardon,  to  which  the  defendant  demurred,  and  the 
judgment  was  given  for  the  defendant ;  because  by  the  finding  of  the 
inquest  the  debt  and  damages  were  vested  in  the  king,  and  the  statute 
contained  no  words  of  restitution. 

Upon  an  issue  devisavit  vel  non,  the  question  was,  whether  the  in- 
quest of  the  coroner,  svper  visum  corporis,  finding  the  testator  luna- 
tic, was  admissible ;  and  the  court  was  divided  upon  the  point;'*  two 
r*inrn  ^^  ^^^  j^'^^s  deeming  *it  to  be  inadmissible,  because  the  par- 
ties were  not  the  same,  the  one  being  a  civil  and  the  other  a 
criminal  proceeding.     But   in   that   case  the   dissentient  judges  ex- 

"^  2  Comm.  260. 

y  It.  V.  Bickley,  3  Price  454 ;  and  the  sheriff  havino;  refused  to  permit  such  in- 
terrof!;atories  to  be  put,  the  court  set  aside  the  inquisition. 

'  1  Wms.  Saund.  3G2,  n.  1  ;  sed  vide  6  B.  &  C.  (13  E.  C.  L.  R.)  627  ;  supra, 
note  {b). 

'  Ibid.  The  jury  cannot  now  be  char<fed  to  find  this,  7  &  8  Geo.  IV.,  c.  28, 
s.  5. 

"  See  1  Saund.  302,  n.  1. 

•=  1  Saund.  361. 

''  The  inquest  was  read  at  the  instance  of  Pratt,  J.,  although  he  was  of 
Of)inion  that  it  was  not,  in  strictness,  admissible  ;  because  it  was  an  issue  out  of 
Chancery,  and  merely  to  inform  the  conscience  of  the  Chancellor :  Str.  68. 


INQUISITIONS.  406 

pre^^sod  their  opinion  that  an  inquhitio  post  mortem  would  be  admis- 
sible, because  it  was  a  civil  proceeding,  and  because  of  the  antiquity 
of  it,  or  as  reputation  to  prove  a  pedigree;^  and  the  chief  justice 
cited  Lord  Derby's  case,  where  an  inquisitio  post  77iortem  had  been 
admitted/ 

In  Sergeson  v.  Seahj,^  Lord  Ilardwicke  said  that  inquisitions  of 
lunacy,  inquisitions  post  mortem,  and  others,  were  always  admissible, 
though  not  conclusive.  In  the  case  of  Burridge  v.  The  Earl  of  Essex, ^ 
an  inquisition  post  mortem,  setting  out  the  tenor  of  a  deed,  was  held 
to  be  evidence  of  the  deed. 

An  inquisition  of  lunacy  may  be  considered  to  be  in  the  nature  of 
a  proceeding  in  rem,  since  it  is  instituted  by  the  direction  of  the 
Lord  Chancellor,  to  whom,  by  special  authority  from  the  king,  the 
custody  of  idiots  and  lunatics  is  intrusted,'  to  inquire  into  the  state  of 
the  party's  mind.  In  the  case  of  Faidder  v.  Sdk,^  Lord  Ellenborough, 
upon  a  plea  of  nan  est  factum  to  a  declaration  on  a  bond,  admitted 
proof  of  an  inquisition  taken  on  a  commission  of  lunacy,  against  the 
obligor  (to  whom  the  defendant  was  executor,)  upon  which  he  had 
been  found  to  be  a  lunatic;  but  held  that  it  was  by  no  means  con- 
clusive.    So  such  an  *inquisition  has  been  received  as  evi- 

.    .  .         .  r*4071 

dence    in    a    criminal    case,  to    show    the    insanity  of    the    •-  -• 

prisoner.' 

So  other  inquisitions  taken  under  proper  authority  in  matters  of 
public  concern  are  admissible  in  evidence.  Thus  in  the  case  of  The 
Queen  v.  Sutton  and  others,"^  upon  an  indictment  against  the  defendant 
for  the  non-repair  of  Kelham  Bridge  (under  the  alleged  obligation 
ratione  tenura'),  the  defendants  tendered  in  evidence  a  presentment 
against  the  vill  of  Kelham  in  the  reign  of  Edward  the  Third,  upon 

"  Jones  V.  White,  Str.  68. 

^  And  see  B.  N.  P.  228  ;  and  per  Hardwicke,  C,  in  Sii'  Hugh  Smithson'' s  case, 
Ibid. 

8  2  Atkins  412.  And  in  accordance  with  this  opinion,  from  Faidder  v.  >S'<7A-, 
3  Camp.  126  :  1  Collins  396 ;  2  Madd.  Ch.  576 ;  Frank  v.  Smith,  2  M.  &  Rob. 
315  ;  The  Irish  Society  v.  Bishop  of  Derry,  12  CI.  &  Fin.  666 ;  it  seems  now  to 
be  settled  that  such  inquisitions,  though  evidence,  are  not  conclusive. 

''  2  Ld.  Raym.  1292.  An  inquisitio  post  mortem,  and  traverse  thereon,  is 
evidence,  although  it  be  voidable  :   Leighton  v.  Leighton,  Stra.  308  ;   Ibid.  1151. 

'  3  P.  Wms.  108 ;  and  see  now  the  statutes  5  &  6  Vict.  c.  84,  and  8  &  9  Vict. 
c.  100. 

"  3  Camp.  126 ;  see  Dane  v.  Lady  Kirkioall,  8  C.  &  P.  (34  E.  C.  L.  R.)  683. 

'  R.  V.  Bowler,  C.  B.,  June,  1812;  cor.  Le  Blanc  and  Gibbs,  Js.  See  Vol.  II., 
tit.  Will. 

"8  Ad.  &E.  (35  E.  C.  L.  R.)  516. 


407  JUDICIAL     DOCUMENTS. 

Avhicli  the  defendants  had  been  acquitted,  the  jury  upon  that  present- 
ment finding,  in  answer  to  questions  put  by  the  court,  that  the  bri(]ge 
had  been  built  within  sixty  years  of  report  of  men  of  the  county 
passing  that  way ;  and  as  to  the  question,  who  of  right  ought  to  re- 
pair the  bridge,  having  answered  that  they  were  ignorant;  and  it 
was  held  that  the  presentment  and  finding,  which  had  been  removed 
into  Chancery,  together  with  a  grant  of  pontage  for  the  repairs  of 
the  bridge,  soon  afterwards  granted  by  the  Crown,  were  admissible 
in  evidence  on  the  part  of  the  defendants  to  negative  the  alleged  im- 
memorial liability  to  repair  the  bridge.  From  the  judgment  in  this 
case,  the  court  appear  to  have  been  of  opinion  that  the  inquest  was 
admissible  as  a  public  proceeding,  in  which  the  jury  might  properly 
inquire,  not  only  whether  the  persons  charged  were,  but  also  in  gen- 
eral who,  and  whether  any  one,  was  liable  to  repairs.  An  inquisition 
likewise  taken  under  the  stat.  4  Edw.  I.,  was  received,  although  the 
commission  could  not  be  found." 

But  where  an   inquisition  has  been  taken  without  legal  authority 

it  is  inadmissible ;"  as  in  Latkow  v.  *  Earner,^  \i\iQve  it  was 

L          J    held  that  an  inquisition  by  the  sheriff  to  ascertain   to  whom 

the  goods  seized  under  an  execution  against  A.  belonged,  it  was  not 

evidence  for  A.  in  an  action  brought  by  A.  against  the  sheriff. 

"  Rowe  V.  Brenton,  8  B.  &  C.  (15  E.  C.  L.  R.)  747  ;  and  see  Baj/lei/  v.  JVi/lie, 
6  Esp.  C.  85;  Vicar  of  KelUngton  v.  Trin.  Cull.,  1  Wils.  170. 

«  In  Evans  v.  Taylor,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  ''17,  a  report  of  a  survey  by 
the  deputy  surveyer  of  the  duchy  of  Lancaster,  stating  that  the  tenants  of  a 
particular  manor  had  at  a  Court  of  Survey  fenced  its  boundaries,  is  not  a  pro- 
ceeding authorized  like  that  in  Rowe  v.  Brenton,  by  the  statute  Extenta  Manerii, 
4  Edw.  I.,  and  therefore  it  is  not  receivable  to  prove  the  boundaries.  A  pre- 
sentment by  the  jury  under  a  commission  from  Oliver  Cromwell,  apparently  as 
a  private  individual,  is  not  evidence:  Duke  of  Beaufort  v.  Smith,  4  Exch.  450. 
But  the  finding  of  a  jury  summoned  under  a  commission  from  the  Duchy  Court 
of  Lancaster  to  ascertain  the  boundary  between  two  manors  is  admissible  as  a 
verdict,  and  as  reputation  to  prove  such  boundary :  Brisco  v.  Lomax,  8  Ad.  & 
E.  (35  E.  C.  L.  R.)  198.  But  in  The  Queen  v.  Lee,  10  Ad.  &  E.  (37  E.  C.  L.  R.) 
398,  the  Court  of  Queen's  Bench  intimated  a  doubt  whether  presentments  by 
sewers  juries  touching  liabilities  to  repair  within  certain  lands  could  be  admitted  ; 
and  see  ante,  p.  287.  In  general  when  the  inquisition  is  of  general  concern- 
ment, the  commission  under  which  it  was  held  need  not  be  proved  :  B.  N.  P. 
22.S  :  otherwise  the  commission  must  be  produced :  Evans  v.  Taylor,  supra,  with 
the  same  exception  as  in  so  many  other  cases  of  ancient  transactions :  Mayor 
of  Beverley  v.  Craven,  2  M.  &  Rob.  140;  Bayley  v.  Wylie,  6  Esp.  85;  ante,  p. 
289  ;  and  see  Uardcastle  v.  Sclaier,  2  Gwill.  787  ;  Audcrton  v.  Magawley,  3  Bro. 
P.  C.  588. 

''  2  H.  IJl.  4.;7  ;  Glossop  v.  Pole,  3  M.  &  S.  175;  Leiyhton  v.  Leiyhton,  I  Sho. 
i»(J8,     For  this  is  an  inquiry  by  the  sheriff  merely  for  his  own  information. 


DEPOSITIONS,     WHEN     ADMISSIBLE.  409 

Depositions'"  of  witnesses/ although  made  under  *the  sane-    ^    ,„^^ 

.  .  r*4091 

tion  of  an  oath,  are  not   in  general  evidence  as  to  the  facts    •-         -^ 

which  they  contain,  unless  the  party  to  be  affected  by  them  has 
cross-examined  the  deponents,  or  has  been  legally  called  upon,  and 
had  the  opportunity  to  do  so  ;  for  otherwise  one  of  the  great  and 
ordinary  tests  of  truth  would  be  wanting."  Evidence  of  this  kind  is 
weak  and  is  not  admissible,  unless  it  be  the  best  evidence  which  can 
be  procured,  and  also  unless  the  party  against  whom  it  is  offered,  or 
the  party  under  whom  he  claims,  has  had  the  power  of  cross-examina- 
tion, and  has  been  legally  called  on  to  examine ;  which  must  be 
proved  by  showing  that  he  was  a  party  to  the  proceeding ;  that  it 
was  a  judicial  proceeding ;  and  that  he  did  cross-examine,  or  might 
have  done  so.  There  are  some  exceptions  where  the  proceeding  is  of 
a  public  nature,  or  the  evidence  falls  within  the  general  scope  of  the 
rule  as  to  reputation. 

It  is  an  incontrovertible  rule,  that  when  the  witness  himself  may 
be  produced,  his  deposition  cannot  be  read,  for  it  is  not  the  best  evi- 

'  As  to  depositions  taken  before  Justices,  see  11  &  12  Vict.  c.  42,  s.  17,  and 
Vol.  II.,  tit.  Depositions.  And  as  to  examinations  and  depositions  taken  under 
a  commission,  see  post,  p.  423,  et  seq. 

■■  The  oral  testimony  of  a  witness  on  a  former  trial  stands  upon  the  same 
grounds :  B.  N.  P.  242 ;  Sherwiii  v.  Clarges,  12  Mod.  343 :  Pi/ke  v.  Crouch,  1 
Ld.  Raym.  730.  In  Wright  v.  Doe  dem.  Tatham,  1  Ad.  &  E.  (28  E.  C.  L.  R.) 
19,  the  lessor  of  the  plaintiff  had  filed  a  bill  against  the  defendant,  and  an  issue 
at  law  had  been  directed  upon  the  question  whether  A.  had  devised  his  lands 
by  the  will  now  in  dispute.  At  the  trial  of  the  issue,  B.,  one  of  the  attesting 
witnesses,  was  examined  by  Wright  and  cross-examined  by  Tatham.  B.  having 
died  before  the  trial  of  the  second  action,  his  evidence  given  on  the  former  trial 
was  held  admissible  on  the  second,  although  other  plaintiffs  were  joined  with 
Wright  in  the  first,  and  Tatham  was  the  only  lessor  in  the  second.  In  this  case 
a  rule  of  court  had  been  made  by  consent  that  the  notes  of  the  evidence  at  the 
former  trial  should  be  read  as  to  such  witnesses  as  were  dead  or  beyond  sea. 
The  court  held  that  it  was  not  open  to  dispute  that  the  evidence  of  B.  should  be 
read,  his  death  having  been  proved.  They  also  held  that  it  was  equal  in  quality 
to  that  of  the  surviving  attesting  witness.  So  where  the  parties  and  the  title 
were  the  same,  although  the  lands  sought  to  be  recovt'red  were  different,  the  testi- 
mony of  a  witness  on  a  former  trial  was  received  at  a  subsequent  trial :  Doe  v. 
Derhxj,  1  Ad.  &  E.  (28  E.  C.  L.  R.)  791.  But  identity  of  title  and  of  one  of  the 
parties  is  not  sufiicient,  the  other  party  not  being  the  same  or  privy  to  him  : 
Ibid.  783.  It  seems  that  the  testimony  must  be  proved  (unless  by  agreement) 
by  the  judges'  notes,  or  by  a  person  present  who  can  prove  what  the  witness 
said  :  Mayor  of  Doncaster  v.  Day,  3  Taunt.  262  ;  Strutt  v.  Bovingdon,  5  Esp.  56  ; 
R.  v.  Joliffe,  4  T.  R.  290. 

°  Ante,  p.  34. 

25 


409  JUDICIAL    DOCUMENTS. 

dence.'  But  the  deposition  of  a  witness  may  be  read,  not  only  where 
it  appears  that  the  Avitness  is  actually  dead,  but  in  all  cases  where  he 
is  dead  for  all  purposes  of  evidence  ;  as  where  diligent  search  has 
*been  made  for  him  and  he  cannot  be  found,"  where  he 
L  J  resides  in  a  place  beyond  the  jurisdiction  of  the  court,"  or 
where  he  has  become  lunatic  or  attainted/ 

It  has  even  been  said,  that  if  a  witness,  having  been  subpoenaed, 
falls  sick  by  the  way,  his  deposition  may  be  read."  So  if  the  wit- 
ness had  been  kept  out  of  the  way  by  the  adversary,*  or  labor  under 
any  infirmity  which  incapacitates  him  as  a  witness.''  So  the  deposi- 
tion of  a  party   absent  in  Ireland  has  been  admitted.*^     According 

.-    .^    -.    *to  the  practice  of  the  Court  of  Chancery  in  directins:  an 
r  4111    •  •  -/  o 

L         -■    issue  at  law,  an  order  is  made  that  the  depositions  of  wit- 

*  Benson  y.  Olive,  Stra.  920  ;  Godb.  193;  Howard  y.  Tremaine,  Salk.  278;  4 
Mod.  146  ;  Tilleys  case,  280  ;  Hardr.  232  ;  5  Mod.  163,  277  ;  T.  Raym.  336  ;  Fry 
V.  Wood,  1  Atk.  45 ;  Coker  v.  Farewell,  2  P.  Wms.  563  ;  B.  N.  P.  239. 

"  Godb.  326 ;  Law  of  Ev.  106  ;  Benson  v.  Olive,  Stra.  920. 

^  Lord  Altham  v.  Earl  of  Anglesey,  Gilb.  Eq.  Cas.  16,  18  ;  Rep.  temp.  Holt 
736. 

y  The  circumstance  of  attainder,  if  the  witness  were  accessible  to  process, 
would  not  now,  since  the  change  in  the  law,  render  his  deposition  admissible. 
It  has  also  been  decided  that  a  lunatic  may  be  examined:  R.  v.  Hill,  20  L.  J., 
M.  C.  222.  But  proof  of  temporary  insanity  will  suffice  to  let  in  the  deposi- 
tions:  R.  y.  Marshall,  Car.  &  M.  (41  E.  C.  L.  R.)  147;  and  it  would  seem, 
that  unless  the  lunacy  was  of  such  a  character  as  to  render  the  witness  incapa- 
ble of  giving  evidence,  his  deposition  also  would  not  be  admissible.  In  R.  v. 
Hogg,  6  C.  &  P.  (25  E.  C.  L.  R.)  176,  the  deposition  of  an  old  and  bedridden 
woman  was  allowed  to  be  read,  there  being  no  probability  that  she  would  be 
able  to  attend  at  a  future  assizes.  In  criminal  cases  formerly  the  courts  would  not 
admit  the  deposition  of  a  witness  in  evidence,  whilst  any  reasonable  hope  re- 
mained that  the  witness  might  be  able  to  attend  on  some  future  opportunity  : 
R.  V.  Savage,  5  C.  &  P.  (24  E.  C.  L.  R.)  143  ;  R.  v.  Marshall,  Car.  &  M.  (41  E. 
C.  L.  11.)  147.  And  in  a  civil  case,  see  per  Lord  Ellenborough,  Harrison  v. 
Blades,  6  Camp.  457  ;  but  by  stat.  11  &  12  Vict.  c.  42,  the  depositions  are  made 
evidence,  whenever  the  witness  by  reason  of  illness  cannot  attend  the  trial,  see 
Vol.  XL,  tit.  Depositions. 

^  Mod.  283.  284;  Ld.  Raym.  730;  P.  Wms.  288-9  ;  Bac.  Abr.,  Ev.  F. ;  Vin. 
Abr.,  A.  b.  31,  pi.  10;  1  Ves.  &  Beames  22 ;  Jones  v.  Jones,  1  Cox's  Cas.  184. 

"  Green  v.  Gatewick,  B.  N.  P.  243;  R.  v.  Gutteridge,  9  C.  &  P.  (38  E.  C.  L. 
R.)471. 

»>  B.  N.  P.  239;  Kinsman  v.  Crooke,  Ld.  Raym.  1166;  Fry  v.  Wood,  1  Atk. 
145,  So  it  has  been  said,  if  the  witness  be  unable  to  travel.  But  see  the  case 
of  Harrison  v.  Blades,  3  Camp.  57  ;  R.  v.  Wihhaw,  Car.  &  M.  (41  E.  C.  L, 
R.)  145. 

*=  Lord  Altham  v.  Lord  Anglesea,  11  Mod.  210;  Gilb.  Ecj.  R.  16,  18;  but  see 
Tr.  per  Puis,  7th  ed.  385,  386,  where  a  distinction  is  taken  between  Ireland,  and 
a  place  out  of  the  King's  dominions. 


DEPOSITIONS,     WHEN    ADMISSIBLE.  411 

nesses  shall  be  read  on  the  trial,  on  satisfactory  proof  that  they 
were  unable  to  attend  in  person."^  The  principal  object  of  the 
order  is  convenience  in  dispensing  with  the  ordinary  preparatory 
proof.*  Where  depositions  had  been  taken  in  perpetuam  rei  memo- 
riam,  and  a  witness  afterwards  became  a  party  to  the  suit,  his  de- 
position would  not  formerly  be  read,  for  the  intent  of  the  deposition 
was  to  perpetuate  testimony  in  case  of  the  death  of  the  witness.^  And 
so  it  was  held,  where  a  deponent  became  interested  after  his  exami- 
nation in  a  Court  of  Equity,  but  was  no  party  to  the  suit;^  and  yet 
before  the  recent  alteration  of  the  law,  if  the  witness  became  in- 
terested by  operation  of  law,  the  case,  with  respect  to  the  question 
of  evidence,  was  the  same  as  if  he  had  become  blind  or  lunatic  ; 
and  in  equity  depositions  have  been  admitted  under  such  circum- 
stances.'' Where  a  witness  has  been  examined  on  interrogatories 
by  consent,  on  account  of  his  expected  absence,  yet  if  he  be  not 
absent  at  the  time  of  the  trial,  his  deposition  cannot  be  read ;'  but 
it  is  not  necessary  that  he  should  be  actually  *on  his  voyage  v-..  .^n-, 
when  the  trial  comes  on  ;  if  he  be  on  board  and  ready  to  ^  ^ 
sail,  or  if  the  ship  has  been  compelled  to  put  back""  upon  a  tempo- 
rary exigency,  the  deposition  is  still  evidence.  Reasonable  proof 
must  be  adduced  by  the  party  who  offers  the  deposition  in  evidence, 
to  show  the  necessity  of  resorting  to  it.^     The  statement  of  the  de- 

^  Corbet  V.  Corbet^  1  Yes.  &  IJeames  340. 

®  Palmer  v.  Lord  Aylesbury^  15  Ves.  176. 

f  Tilley's  case,  Lord  Raym.  1008  ;  1  Salk.  286  ;  Holcroft  v.  Smith,  Eq.  Cas. 
Ab.  224  ;  Trin.  1702  ;  Vin.  Abr.,  Ev.  A.,  b.  31,  pi.  42 ;  Baker  v.  Lord  Fairfax, 
Str.  101.  Where  a  plaintiflF  in  equity  appointed  a  witness  his  executor,  who 
revived  the  suit,  his  deposition  was  ordered  to  be  read  on  such  trial:  Andrews 
V.  Beauchamp,  7  Sim.  65.  But  now  that  the  party  might  be  examined,  under 
14  &  15  Vict.  c.  99,  this  difficulty  would  not  arise. 

«  Baker  v.  Lord  Fairfax,  Str.  101. 

^  2  Ves.  sen.  42;  Glynn  v.  Bank  of  England ;  Holcroft  v.  /Smi77t,  Eq.  Cas.  Ab. 
224 ;  Goss  V.  Tracy,  1  P.  Wms.  287 ;  2  Vern.  472 ;  Haws  v.  Hand,  2  Atk.  615. 
In  Glynn  v.  Bank  of  England,  2  Ves.  sen.  42,  Lord  Hardwicke  said  such  evi- 
dence was  allowable  on  good  reason,  for  the  evidence  was  to  be  taken  as  it  stood 
at  the  time  of  the  witness's  examination,  which  should  not  be  set  aside  unless  it 
could  be  supplied  by  other  evidence. 

'  Proctor  V.  Lainson,  7  C.  &  P.  (32  E.  C.  L.  R.)  629  ;  2  Salk.  691  ;  2  Tidd's 
Pr.  9th  ed.  811.  For  it  is  an  implied  condition  that  the  attendance  of  the  wit- 
ness is  not  practicable. 

^  Fonsick  v.  Agar,  6  Esp.  92.  See  Ward  v.  Wells,  1  Taunt.  461  ;  Varicas  v. 
French,  2  Car.  &  K.  (61  E.  C.  L.  R.)  1000.  See  the  statutes  and  decisions  on 
them  as  to  such  examinations,  post,  p.  429. 

'  Proctor  V.  Lainson,  7  C.  &  P.  (32  E.  C.  L.  R.)  629.     It  has  been  held  to  be 


412  JUDICIAL     DOCUMENTS. 

position  itself  is  insufficient.™  Upon  an  application  by  the  defend- 
ant, a  trial  for  misdemeanor  has  been  postponed  upon  his  consent- 
ing, by  writing  under  his  own  hand,  to  the  examination  of  a  witness 
for  the  Crown  upon  interrogatories." 

Secondly^  a  deposition  is  not  admissible  unless  the  parties  be  the 
same;"  for  a  stranger  to  the  former  suit  had  no  opportunity  to  cross- 
examine,  and  therefore  cannot  be  affected  by  the  deposition  ;''  and  he 
cannot  use  them  against  one  who  was  a  party,  because  he  could  not 
have  been  prejudiced  by  them,  and  therefore,  for  want  of  mutuality, 
ought  not  to  take  advantage  of  them.'^ 

*Accordingly  on  an  appeal  of  murder  an  appellant  could 
L  ^^  not  give  in  evidence  an  indictment  for  the  same  murder,  and 
what  a  witness  had  sworn  upon  the  trial  ;"■  as  the  evidence  on  the 
indictment  was  not  evidence  for  the  appellant  neither  was  it  for  the 

insufficient  to  show  that  the  witness  was  a  seafaring  man  and  that  several 
months  ago  he  belonged  to  a  vessel  lying  in  the  River  Thames,  without  show- 
ing the  nature  of  the  vessel,  or  whither  she  was  bound  :  Falconer  v.  Hanson^  1 
Camp.  171. 

""  Proctor  V.  Lainson,  7  C.  &.  P.  (31  E.  C.  L.  R.)  629.  But  answers  to  inqui- 
ries are  evidence  to  satisfy  the  judge  :  Burt  v.  Walker,  4  B.  &  A.  (6  E.  C.  L.  R.) 
697  ;    Wyatt  v.  Bateman,  7  Car.  &  P.  (32  E.  C.  L.  R.)  586. 

"  R.  V.  Morphew,  2  M.  &  S.  602.  The  same  thing  was  done  upon  the  trial  of 
Mr.  Hastings ;  see  2  M.  &  S.  603. 

"  They  are  admissible  against  the  Crown  ;  as  in  the  Baron  de  Bode's  case,  8 
Q.  B.  (55  E.  C.  L.  R.)  208,  where  they  were  taken  under  a  commission  to  per- 
petuate testimony  filed  against  the  Attorney-General,  and  on  a  petition  of  right 
they  were  admitted  on  the  trial  of  a  traverse  of  the  inquisition  taken  on  that 
petition. 

P  B.  N.  P.  242:   Cook  v.  Fountain,  1  Vern.  413  -,  2  Rol.  Abr.  679;  Hob.  155. 

1  Bac.  Abr.,  Ev.  F.  ;  Rushworth  v.  Pembroke,  Hardr.  472;  Gilb.  L.  of  Ev.  55  ; 
but  see  Vin.  Abr.,  Ev.  A.,  b.  31,  pi.  47.  This  principle  seems  to  have  been  ex- 
tended to  a  case  where  the  party  against  whom  the  depositions  were  offered  in 
evidence  had  himself  read  the  depositions  in  a  former  cause.  Thus  on  an  issue 
from  Chancery  between  A.  and  B.  it  was  held,  that  depositions  produced  by  B. 
in  Chancery  in  a  suit  of  C.  against  B.,  were  admissible ;  Atkins  v.  Humphreys^ 
1  M.  &'Rob.  523  ;  Brickcll  v.  Hvlse,  7  Ad.  &  E.  (34  E.  C.  L.  R  )  456.  But  see 
Phill.  on  Evid.  571.  8th  ed.  Where  on  a  former  trial  of  the  title  to  the  same 
property  on  an  ejectment  by  the  same  lessors  of  the  plaintiff  against  a  different 
defendant,  a  deed  was  given  in  evidence  by  the  latter,  the  limitations  in  which 
were  stated  in  court  by  the  defendant's  counsel,  a  copy  of  the  shorthand-writer's 
notes  of  that  statement  was  rejected  in  another  ejectment  by  the  same  lessors  of 
tlio  plaintiff  against  a  different  defendant,  and  it  was  questioned  whether  it  would 
liave  been  receival)le,  had  the  parties  ))een  the  same:  Doe  dem.  Gilbert  v.  Ross, 
7  -M.  .t  W.  102. 

^  1  Sid.  235:  2  Haw.  430;  2  Roll's  Rep.  460;  2  Keb.  384;  Bac.  Abr.,  Ev.  F. 


DEPOSITIONS,     WHEN    ADMISSIBLE.  413 

appellee.'  A.  preferred  his  bill  against  B.,  and  B.  exhibited  his 
bill  touching  the  matter  against  A.  and  0.  ;  on  a  trial  at  law  it  was 
held,  that  C.  could  not  use  the  depositions  in  the  same  cauSe  between 
A.  and  B.,  but  that  the  whole  must  be  tried  as  7'es  nova}  The  de- 
positions or  evidence  of  a  witness  in  one  cause  cannot  be  evidence  in 
another,  where  the  verdict  would  be  inadmissible  ;  for  the  oath  can- 
not be  given  in  evidence  without  first  giving  the  verdict  in  evidence;" 
for  otherwise  it  would  not  appear  that  the  oath  was  more  than  a 
voluntary  affidavit.  But  it  is  not  necessary  that  the  depositions 
should  have  been  made,  or  the  evidence  given  in  the  same  proceed- 
ing, provided  the  parties  be  the  same ;  in  the  Court  of  Chancery, 
depositions  in  one  cause  are  frequently  read  in  another;  and  in 
courts  of  law,  the  evidence  which  the  witness  gave  on  a  former  trial 

may  be  *read  in  a  subsequent  one,  after  his  death,  or  while 

1  .  r*4141 

he  continues  abroad."  •-         -^ 

But  although  the  parties  are  the  same,  yet  if  the  same  matters 
were  not  in  issue  in  the  former  cause,  the  depositions,  it  is  said,  are 
not  evidence ;''  this  rule,  however,  at  all  events,  does  not  apply  to 
cases  where  depositions  are  offered  against  those  who  were  not  par- 
ties to  the  former  suit,  as  matter  of  reputation,  for  there  the  very 

^  B.  N.  P.  243  ;  1  Sid.  325. 

»Gilb.  Law  of  Evid.  108;  Hard.  472;  12  Vin.  Abr.  109,  pi.  24;  Atkins  v. 
Humphreys,  1  M.  &  Rob.  523;  Brickell  v.  Hidse,  7  Ad.  &  E.  (34  E.  C.  L.  R.) 
456. 

°  B.  N.  P.  242 ;  1  Sid.  325  ;  but  see  253,  note  [i).  It  seems  to  be  sufficient  to 
give  ih.Q  postea  in  evidence. 

""  Per  Lord  Kenyon,  4  T.  R.  290 ;  Pike  v.  Crouch,  Lord  Raym.  730 ;  Patton  v. 
Walter,  Str.  162;  Green  v.  Gatewick,  B.  N.  P.  243;  12  Mod.  319;  Barn.  213, 
243;  Lord  Palmerstnn's  case,  cited  by  Lord  Kenyon,  4  T.  R.  290,  where  upon  a 
trial  at  bar  it  was  held,  on  all  hands,  that  what  Lord  Palmerston  swore  upon  a 
former  trial  was  evidence,  the  witness  having  died  in  the  interim;  but  the  evidence 
was  ultimately  rejected  because  the  witness  could  not  give  the  words,  but  only 
the  fact.  In  chancery,  depositions  taken  thirty  years  ago  have  been  admitted 
to  be  read,  although  the  parties  were  not  the  same  ;  because  they  related  to  the 
same  land,  and  the  tenants  were  parties  to  it,  and  the  plaintiif 's  title  did  not 
then  appear :  B.  N.  P.  240 ;  Chan.  Cas.  73 ;  Bac.  Abr.,  Ev.  F.  ;  Eq.  Ca.  Ab.  627. 
Formerly  depositions  in  perpetuam  rei  memoriam  were  not  published  till  after 
the  death  of  the  witnesses,  which  was  attended  with  inconvenience,  because 
they  swore  with  impunity  :  Bac.  Abr.,  Ev.  F. ;  and  see  7  Ad.  &  E.  (34  E.  C.  L. 
R.)  458  ;  Tufton  v.  Whitmore,  12  Ad.  &  E.  (40  E.  C.  L.  R.)  307.  Voluntary 
oaths,  too,  are  now  prohibited  by  5  &  6  AVill.  IV.  c.  62.  By  this  Act  a  decla- 
ration in  a  prescribed  form  is  substituted  in  many  cases  for  the  affidavits 
formerly  in  use. 

^  Allibone  v.  The  Attorney-General,  Vin.  Abr.,  Ev.  A.,  b.  31,  pi.  45. 


414  JUDICIAL     DOCUMENTS. 

circumstance  that  the  same  matter  was  litigated,  has  been   urged  as 
an  objection.* 

Neither  does  the  objection  apply  in  criminal  cases;  a  deposition 
made  upon  a  particular  charge  may  frequently  be  read  upon  the  trial 
of  the  prisoner  for  another.  A  deposition  taken  upon  a  charge  of 
assault  and  robbery  may  be  read  upon  a  trial  for  murder,  the  trans- 
action being  the  same.** 

r*4.1  ^1  *Depositions  in  a  former  cause  cannot  in  general  be  read 
against  one  who  does  not  claim  under  the  party  with  whom 
such  depositions  were  taken  ;  but  in  equity,  if  a  legatee  bring  a  bill 
against  the  executor,  and  prove  assets,  it  is  said  that  another  legatee, 
although  no  party,  may  have  the  benefit  of  those  depositions ;"  at 
law  they  may  be  read  where  the  defendant  claims  in  privity  Avith  the 
defendant  in  the  former  suit.*^ 

Thirdli/,  in  order  to  admit  a  deposition,  or  the  oral  testimony  of  a 
witness  in  a  former  cause,  it  is  necessary  to  show  that  such  a  case  or 
proceeding  legally  existed,  for  otherwise  it  would  not  appear  that 
the  deposition  was  anything  more  than  a  mere  voluntary  affidavit  of 
a  stranger.®  It  seems  to  be  a  general  rule,  that  the  depositions  or 
evidence  in  a  former  cause  are  never  admissible  in  evidence,  unless 
the  verdict  or  judgment  would  in  itself  be  evidence.^ 

*  Infra. 

"  E.  V.  Smith,  2  Starkie's  C.  (3  E.  C.  L.  R.)  208  ;  and  see  R.  v.  Edmunds,  G 
Car.  &  P.  (25  E.  C.  L.  R.)  164 ;  Radburn's  case,  I  Leach  457  ;  and  Vol.  II.,  tit. 
Depositions. 

"  Cokey.  Fountain,  Tern.  415;  12  Vin.  Abr.  160,  pi.  27.  A  party  executed 
a  power  of  appointing  funds  in  settlement  in  favor  of  children  ;  after  the  death 
of  one,  the  mother  and  the  survivors  executed  a  voluntary  conveyance  in  favor 
of  children  of  the  deceased,  and  subsequently  conveyed  the  premises  to  a  pur- 
chaser, who  filed  a  bill  to  set  aside  the  voluntary  conveyance,  and  a  bill  was 
also  filed  to  establish  the  sale,  by  a  partner  of  the  purchaser,  alleging  the  con- 
sideration to  have  been  paid  in  part  with  his  money,  and  a  suit  was  afterwords 
filed  against  the  two  latter  parties  to  establish  the  conveyance,  and  set  aside 
the  sale  as  fraudulent  and  collusive,  in  which  suit  an  issue  was  directed  as  to 
the  bona  fides  of  the  sale,  and  payment  of  the  consideration ;  held,  that  on  the 
trial  the  depositions  taken  in  the  first  suit  by  the  purchaser  were  properly  re- 
jected :  Humphreys  v.  Pensam,  1  Myl,  &  Cr.  580. 

0  Earl  of  Bath  v.  Battersea,  5  Mod.  9  ;  12  Vin.  Abr.  Ill,  pi.  31.  And  see  1 
Ad.  &  E.  (28  E.  C.  L.  R.)  788,  790. 

*  B.  N.  P.  242.  Sherwin  v.  Claryes,  12  Mod.  353.  There  is  also  this  objec- 
tion to  it,  that  its  statements  had  not  the  penal  sanction  of  an  oath. 

'  B.  N.  P.  242.  Because  giving  the  verdict,  &c.,  in  evidence  is  a  preparatory 
step ;  but  it  seems  that  the  production  of  the  postea  would  be  sufficient  to  war- 
rant the  reception  of  such  evidence,  since  it  would  show  the  fact  that  a  trial 


DEPOSITIONS,     WHEN     ADMISSIBLE.  416 

*It  is  also  a  rule,  that  no  extra-judicial  deposition  can  be  r^j^i^-i 
used  in  evidence ;  for  the  party  was  not  bound  to  take  any 
notice  of  the  proceeding.  Accordingly,  upon  an  indictment  for  a 
libel,  depositions  before  a  magistrate  Avere  not  admitted  in  evidence, 
as  they  would  have  been  under  the  statutes  of  Philip  &  Mary,  in 
cases  of  felony. ^  Nor  are  they  so  in  any  case  where  the  proceeding 
is  coram  non  judice  ;'*  as,  where  a  voluntary  aflBdavit  is  made  before 
the  Master,'  such  an  affidavit  would  not  be  evidence,  unless  the  ad- 
mission of  the  party  who  made  it  would  be  evidence.''  So  if  the 
bill  has  been  dismissed  on  account  of  the  irregularity  of  the  com- 
plaint,^ as  if  the  depositions  are  taken  in  a  revived  suit,  where  a  bill 
of  revivor  does  not  lie,"  for  in  such  a  case  there  is  no  complaint  be- 
fore the  court  in  which  depositions  can  regularly  be  taken.  But  if 
the  bill  be  dismissed  merely  because  the  matter  is  not  proper  for  a 
decree  in  equity,  although  within  the  jurisdiction  of  the  court,  the 
depositions  may  be  read  in  another  cause  between  the  same  parties." 
Where  the  proceeding  is  merely  voidable,  it  seems  that  the  deposi- 
tions may  be  read;  but  it  is  otherwise  where  it  is  absolutely  void." 
But  in  some  instances,  where  depositions  have  been  irregularly  taken, 
a  Court  of  Equity  will  order  that  they  shall  stand. ^  Voluntary 
depositions  before  justices  cannot  be  read  on  an  indictment  for  trea- 
son, or  upon  the  trial  *of  an  appeal  or  in  a  civil  action,''  for 
they  are  extra-judicial.     It  was  held,  that  depositions  in  the    '-  ^ 

Court  of  Wards  were  not  evidence  in  the  King's  Bench  to  prove  the 
same  title." 

It  has  frequently  been  held,  that  depositions  taken  in  a  Spiritual 

was  had  between  the  same  parties.  It  should  seem,  however,  that  where  a  new 
trial  is  granted,  and  one  of  the  witnesses  dies  in  the  meantime,  his  evidence  on 
the  former  trial  would  be  admissible,  although  the  verdict  itself  would  be  in- 
admissible :  R.  V.  Joliffe,  4  T.  R.  290. 

8  R.  V.  Paine,  5  Mod.  12;  Vin.  Abr.,  Ev.  A.,  b.  31.  This  was  before  7  Geo. 
IV.  c.  64,  which  extended  to  misdemeanors.  And  see  5  &  6  Will.  IV.  c.  62, 
which  prohibits  voluntary  oaths. 

^  Stock  v.  Denew,  Vin.  Abr.,  Ev.  A.,  b.  31,  pi.  16. 

'  Sty.  446  ;  Mai/  v.  May,  K.  B.  at  Bar ;  Bac.  Abr.,  Ev.  F.  *  Ibid. 

'  1  Ch.  Ca.  185  ;  Backhouse  v.  Middleton,  Gilb.  Law  of  Ev.  56. 

""  1  Ch.  Ca.  175. 

°  S7nith  V.  Veale,  Ld.  Raym.  735 ;  Ch.  Ca.  175  ;  3  Ch.  Rep.  72 ;  12  Vin.  Abr. 
109,  pi.  15 ;  Noijder  v.  Peacock,  Ibid.  112,  pi.  41. 

°  Leighton  v.  Leighton,  Stra.  308. 

P  Murray  v.  Wise,  cited  Stra.  308. 

•J  2  Hale's  P.  C.  286  ;  Ld.  Raym.  730 ;  and  see  sup.  n.  [g). 

'  2  Roll.  R.  212. 


417  JUDICIAL    DOCUMENTS. 

Court  cannot  be  used,  even  hj  consent,'  in  a  court  of  common  law,' 
because  it  is  not  a  court  of  record.  Yet  the  same  objection  applies 
to  depositions  in  Chancery.  In  Breedon  v.  Gill,''  Lord  Holt  expressed 
an  opinion  that  depositions  before  commissioners  of  excise  might,  if 
the  witnesss  died,  be  afterwards  read  before  the  commissioners  of 
appeals.  And  depositions  under  the  statutes  of  Philip  &  Mary,  and 
7  Geo.  IV.  c.  64,  were  read  upon  trials  for  felony,  although  they 
were  not  of  record.  And  it  is  to  be  observed,  that  these  statutes  do 
not  expressly  direct  that  these  depositions  shall  be  evidence  ;  they 
were,  indeed,  originally  intended  for  a  different  purpose,  and  they  be- 
come evidence  as  authorized  proceedings  in  the  course  of  the  same 
prosecution,^  In  Welsh's  case/  Lord  Hale  assigns  two  reasons  why, 
upon  an  indictment  for  a  forcible  marriage  with  Mrs.  Puckring,  the 
deposition  of  Mrs.  Puckring  before  commissioners  appointed  to  dis- 
solve the  marriage,  if  they  thought  fit,  should  not  be  read  ;  first, 
because  it  Avas  a  proceeding  according  to  the  civil  law,  in  a  civil 
cause;  secondly,  because  she  was  interested;  and  does  not  hint  that 
it  was  an  objection  that  the  court  was  not  a  court  of  record.  With 
respect  to  depositions  in  the  Ecclesiastical  Court,  C.  B.  Gilbert  lays 
r*4.181  ^^  down  that  they  may  be  read  when  taken  in  a  cause  over 
*which  they  have  jurisdiction,  as  far  as  relates  to  that  cause, 
since  they  are  hiAvful  oaths,  and  a  man  may  be  indicted  for  violation 
of  them.^  When,  indeed,  they  are  taken  in  a  cause  over  which  they 
have  no  authority,  as  where  the  realty  is  concerned,  they  clearly  are 
not  admissible.'^ 

Fourthly,  a  deposition  is  not  evidence  against  one  who  had  not  the 
power  or  liberty  to  cross  examine  the  witness,  or  does  not  claim  under 
one  who  had  that  power.** 

*  March  120,  sed  qucere. 

*  Litt.  R.  167 ;  B.  N.  P.  242 ;  2  Roll.  Abr.  679  ;  Bac.  Abr.,  Ev.  F. ;  2  Hale 
285  ;  March  120  ;  1  Haw.  c.  42 ;  Vin.  Abr.,  Ev.  A.,  b.  31.  The  power  of  taking 
depositions  has  since  been  enlarged.     See  Vol.  II.,  tit.  Depositions. 

"  Ld.  Raym.  222. 

^  See  2  Hale  284.     In  the  statute  11  &  12  Vict.  c.  42,  s.  17,  there  is  an  express 
provision  to  that  effect,  which  was  not  contained  in  the  prior  Acts. 
y  2  Hale  285. 
^  Gillj.  Law  of  Ev.  60. 

*  Gilb.  Law  of  Ev.  GO ;  2  Roll.  Abr.  079  ;  Litt.  R.  167  ;  March  120;  and  see 
post,  p.  4.'54. 

"  Hardr.  472,  215;  2  Jones  164;  Wils.  214,  215;  Hob.  155;  2  Roll.  Abr.  679; 
1  Vern.  413.  Where  barrack  commissioners,  acting  upon  47  Geo.  III.  c.  1,  in 
taking  public  account,  examined  witnesses,  and  put  their  depositions  in  writing; 
and  Jill  inroriiiatioii  having  been  filed  against  the  defendant  relative  to  certain 


DEPOSITIONS,     WHEN     ADMISSIBLE.  418 

Accordingly  depositions  taken  before  commissioners  of  bankrupt, 
being  ex  parte,  were  not  evidence  previously  to  tbe  statutes*'  by 
whicb  they  are  made  evidence  in  *particular  cases. "^  In  r:c4-|Q-| 
Chancery  the  witness  was  examined  de  bene  esse  ;  an  answer 
was  put  in  ;  but  the  witness  was  so  ill,  that  he  could  not  be  cross- 
examined,  and  before  the  end  of  three  weeks  he  died,  and  all  the 
judges  held  that  the  deposition  was  not  evidence.®  So  if  before  the 
coming  in  of  the  answer,  the  defendant  not  being  in  contempt,  the 

contracts,  the  matters  were  referred  to  arbitration  ;  held,  that  the  arbitrators 
could  not  receive  such  depositions,  having  been  taken  without  the  defendant 
having  had  an  opportunity  of  being  present,  or  of  cross-examining  the  witnesses : 
Attorn aj- General  v.  Davison^  1  McCl.  &  Y.  169.  The  examination  of  a  witness 
taken  before  commissioners  on  an  inquiry  cannot  be  read  as  evidence  on  a  petition 
to  expunge  the  proof  of  a  creditor  who  was  not  a  party  to  that  inquiry :  Ex  2)arte 
Coles,  Buck  242 ;  Cooke,  B.  L.  .552,  8th  ed. ;  Ex  imrte  Camjjbell,  2  Rose  51. 
On  a  charge  of  felony,  the  magistrate's  clerk  examined  the  witnesses  before  the 
arrival  of  the  magistrates  and  the  prisoner,  and  after  their  arrival  they  were 
read  over  to  the  witnesses  in  the  presence  of  the  magistrates  and  the  prisoner, 
and  the  latter  was  asked  whether  he  had  any  questions  to  put  to  any  of  them  ; 
Piatt,  B.,  reprobated  the  practice  :  R.  v.  Johnson,  2  C.  &  K.  (61  E.  C.  L.  R.) 
394. 

«  5  Geo.  II.  c.  30,  s.  41  ;  49  Geo.  III.  c.  121,  s.  10.  The  statute  6  Geo.  IV.  c. 
86,  ss.  90,  92,  made  depositions  in  bankruptcy,  in  certain  cases,  conclusive ;  and 
2  &  3  Will.  IV.  c.  114,  s.  7,  made  such  depositions  evidence  in  certain  cases,  the 
deponents  being  dead.  The  statute  12  &  13  A''ict.  c.  106.  which  repeals  these 
Acts,  provides  (s.  242)  that  in  the  event  of  the  death  of  any  witness  deposing 
to  the  petitioning  creditor's  debt,  the  trading,  or  act  of  bankruptcy  under  any 
bankruptcy  theretofore  or  thereafter,  or  under  any  petition  for  arrangement, 
his  deposition  purporting  to  be  sealed  with  the  seal  of  the  court,  or  a  copy  of  it 
purporting  to  be  so  sealed  shall  be  received  as  evidence  of  the  matters  con- 
tained in  it.  See  also  the  stat.  59  Geo.  III.  c.  12,  as  to  the  examinations  of 
prisoners  touching  their  settlements-,  and  the  Mercantile  Marine  Act,  post,  p. 
427. 

^  1  Lev.  180 ;  Ld.  Raym.  220 ;  T.  Jones  53 ;  Janson  v.  Wilson,  Doug.  257  ; 
Bowles  V.  Langioorthij,  5  T.  R.  366 ;  2  Roll.  Abr.  679  ;  B.  N.  P.  242.  The  de- 
positions of  deceased  witnesses  taken  before  commissioners  of  bankrupt,  on  the 
opening  of  the  commission,  and  enrolled  by  the  assignees  afterwards  appointed, 
were  held  not  to  be  evidence  against  the  assignees  in  an  action  by  the  bankrupt ; 
the  assignees  in  such  a  case  having  had  no  opportunity  of  cross-examining  the 
witnesses  at  a  meeting  which  was  strictly  private :  Chambers  v.  Bernasconi,  1 
C,  M.  &  R.  347. 

®  Brown''s  case,  Hardr.  315  ;  Button  v.  Colt,  Sir  T.  Raym.  335  ;  but  see  Ch.  R. 
90;  Vin.  Abr.,  Ev.  A.,  b.  31,  pi.  8.  A  deposition  is  not  admissible  before  answer 
put  in,  or  the  party  is  in  contempt,  unless  he  had  the  opportunity  of  cross- 
examining  :  Cazenove  v.  Vaughan,  1  M.  &  S.  4.  So  if  the  witness  be  examined 
without  service  of  the  order  so  to  do :  Mulvany  v.  Dillon,  1  B.  &  B.  (5  E.  C.  L. 
R.)  413. 


419  JUDICIAL     DOCUMENTS. 

witness  die/  Where,  however,  the  defendant  is  in  contempt  for 
refusing  to  answer,  the  objection  ceases,  for  it  was  his  own  fault 
that  he  did  not  cross-examine  the  witnesses.^  And  in  general, 
where  the  party  has  had  an  opportunity  to  cross-examine  in  the 
course  of  a  regular  legal  proceeding,  and  has  neglected  *to 
L  "^  -J  do  so,  the  case  is  the  same  in  effect  as  if  he  had  cross- 
examined.'' 

Evidence  given  by  a  witness  on  the  trial  of  an  issue  directed  by 
the  Court  of  Chancery  is  evidence  in  an  action  upon  the  trial  of  an 
ejectment  after  the  death  of  the  witness  against  the  lessor  of  the 
plaintiff,  Avho  was  the  plaintiff  in  equity.'  For  the  lessor  had  the 
power  of  objecting  to  the  competency  of  the  witness,  and  the  same 
right  of  cross-examination,  and  of  calling  witnesses  to  discredit  or 
contradict  the  testimony  of  the  witness. 

Though  depositions  taken  de  bene  esse,  before  the  answer  of  the 
defendant,  are  not,  as  we  have  seen,  admissible  in  a  court  of  law, 
since  they  are  taken  before  issue  joined''  yet  a  Court  of  Equity  will 
sometimes  direct  them  to  be  read ;'  but  such  an  order  is  not  binding 

'^Hardr.  215;  2  Jon.  164:  2  Wils.  563;  for  there  the  defendant  had  not  an 
opportunity  of  cross-examining.  In  such  case  the  party,  it  is  said,  may  apply 
to  the  Court  of  Chancery  that  the  deposition  may  be  read,  and  if  the  court  see 
cause  they  will  order  it ;  and  this  oi'der,  it  is  said,  will  bind  the  parties  to  assent, 
but  will  not  bind  the  Court  of  Nisi  Prius :  Gilb.  Law  of  Ev.  57  ;  B,  N.  P.  240 ; 
2  Jon.  164. 

^  Gilb.  Law  of  Ev.  56 ;  and  see  Cazenove  v.  Vaughan,  1  M.  &  S.  4 ;  the  obser- 
vations of  Le  Blanc,  J.,  Ibid. :  B.  N.  P.  240 ;  Com.  Dig.,  Ev.  C.  4. 

**  Cazenove  v.  Vaughan,  1  M.  &  S.  4.  The  plaintiffs  filed  a  bill  in  Chancery 
for  the  examination  of  a  witness  de  bene  esse,  and  the  defendant  did  not  put  in 
any  answer.  The  plaintiffs  gave  notice  to  the  defendants  of  an  order  obtained 
from  the  court  for  the  examination,  and  of  the  questions  intended  to  be  put, 
and  examined  the  witness  the  same  evening,  who  set  off  the  next  day  and  never 
returned.  The  plaintiffs  obtained  a  further  order  for  publication  of  the  deposi- 
tion, in  order  that  it  might  be  read  at  the  trial,  and  the  deposition  was  admitted 
in  evidence.  And  see  M'Combie  v.  Anton,  6  M.  &  G.  (46  E.  C.  L.  R.)  27 ;  Gilb. 
Law  of  Ev.  62,  64,  4th  ed.  ;  4  Mod.  146  ;  Howard  v.  Tremaine,  Show.  363,  semb. 
contra,  1  P.  Wms.  414  ;  Copeland  v.  Stanton,  B.  N.  P.  240 ;  Com.  Dig.,  Ev.  C.  4. 

'  Wright  v.  Doe  d.  Tatham,  1  Ad.  &  E.  (28  E.  C.  L.  B.)  3.  Note,  that  in  the 
suit  in  equity  other  persons  besides  the  defendant  in  the  ejectment  wei*e  co- 
defendants.  So  if  the  parties  and  title  in  dispute  are  the  same,  though  the 
lands  be  different:  Doe  v.  Earl  of  Derby,  1  A.  &.  E.  (28  E.  C.  L.  R.)  791. 

*  2  Jones  164;  Vin.  Abr.,  A.  b.  31,  pi.  12,  22;  Dutton's  case,  Sir.  T.  Raym. 
335;  llardr.  315;  2  P.  Wms.  161;  IMIn.  Hoddesdon,  12  Vin.  Abr.,  Ev.  A., 
b.  31. 

'2  Jones  164. 


DEPOSITIONS,     WHEN    ADMISSIBLE.  420 

in  a  court  of  law,""  Where,  however,  upon  a  bill  to  perpetuate  testi- 
mony, the  defendant  was  in  contempt,  and  would  not  answer,  and 
the  plaintiff  had  a  commission,  and  examined  witnesses  de  bene  esse, 
and  the  defendant  joined  in  the  *commission,  and  cross-ex-    ^^  ^^^_, 

.  .  .         r  4211 

arained  some  of  the  witnesses  produced  for  the  plaintiff,  and  ^  J 
before  the  coming  in  of  the  answer  the  witness  died,  it  was  held, 
after  much  debate,  that  the  depositions  were  admissible  between  the 
parties  on  trial  at  law,  for  otherwise  a  bill  to  perpetuate  testimony 
would  be  of  no  use."  There  the  defendant  joined  in  the  commission, 
and  cross-examined,  but  the  principle  seems  to  extend  to  all  cases 
where  the  defendant  refuses  to  answer,**  for  otherwise  he  might  wait 
till  all  the  witnesses  were  dead,  having  in  the  meantime  prevented 
his  antagonist  from  perpetuating  their  testimony. ^ 

Depositions  relating  to  a  custom,  or  prescription,  or  pedigree, 
where  reputation  would  be  evidence,  are  admissible  against  strangers; 
for  as  the  traditionary  declarations  of  persons  dead  would  be  admis- 
sible, a  fortiori  their  declarations  on  oath  are  so.*^  Where,  however, 
depositions  relate  precisely  to  the  same  issue,""  and  are  made  post 
litem  motam,  they  cannot  be  received.^  On  the  trial  of  a  question 
between  the  lord  of  a  manor  and  a  copyholder,  as  to  a  custom  insisted 
upon  by  the  lord  in  respect  of  copyholds  granted  for  two  lives,  that 
the  surviving  life  should  renew,  paying  to  the  lord  such  fine  as  should 
be  set  by  the  homage  to  be  equal  to  two  years'  improved  value,  it 
was  held,  that  depositions  in  an  ancient  suit,  instituted  against  a 
former  lord  of  the  manor  by  a  person  who  claimed  to  be  admitted 
to  a  copyhold  for  lives,  upon  a  custom  for  any  copyhold  tenant  for 
life  or  lives  to  change  or  fill  up  *his  lives,  paying  to  the  lord  r*_i9.o-i 
a  reasonable  fine,  to  be  set  by  the  lord  or  his  steward,  and 
which  depositions  were  made  by  witnesses  on  behalf  of  the  copyholder, 
were  admissible  evidence  for  the  lord,  as  depositions  of  persons  stand- 
ing lyari  jure  with  the  new  copyholders ;  it  was  not  proved  that  the 

""  Ibid.,  supra,  note  {/). 

"  Show.  263,  264 ;  Carth.  265  ;  4  Mod.  147  ;  Salk.  278  ;  12  Vin.  Abr.,  A.  b. 

°  But  great  stress  was  laid  upon  that  fact  by  Grey,  J.,  Carth.  265. 

P  See  Broum's  case,  Hardr.  315  ;  Vin.  Abr.,  Ev.  A.,  b.  31,  pi.  23  ;  Button's  case, 
T.  Raym.  335  ;  A''in.  Abr.,  Ev.  A.,  b.  31,  pi.  12;  and  the  observations  in  Cazenove 
v.  Vaughan,  1  M.  &  S.  4. 

1  B.  N.  P.  230 ;  Cort  v.  Birkbeck,  Doug.  219  ;  and  see  the  expressions  of  Lord 
Ellenborough  in  Freeman  v.  Phillips,  4  M.  &  S.  491. 

"■  Case  of  the  Berkeley  Peerage,  4  Camp.  401 ;  case  of  the  Banbury  Peerage, 
infra,  p.  439,  note  (c) ;  R.  v.  Cotton,  3  Camp.  444 ;  4  M.  &  S.  486. 

^  Freeman  v.  Phillips,  4  M.  &  S.  486. 


422  JUDICIAL    DOCUMENTS. 

persons  making  such  depositions  were  copyholders,  but  it  appeared 
from  the  depositions  themselves  that  they  were  such,  or  that  they 
were  persons  acquainted  with  the  custom  of  the  manor.  And  it  was 
held  that  their  depositions,  supposing  them  to  be  admissible  only  as 
declarations  of  persons  deceased,  were  not  inadmissible  on  account  of 
their  having  been  made  post  litem  motam,  because  the  custom  was 
not  in  controversy  in  the  former  suit  as  in  the  latter.'  Where,  how- 
ever, the  Us  mota  was  on  the  very  point,  the  depositions  and  declara- 
tions of  persons  in  respect  of  it  would  not  be  evidence,  since  it  is 
doubtful  whether  the  deposition  of  witnesses  selected  and  brought 
forward  to  support  one  side  of  the  question,  and  who  partake  of  the 
feelings  and  prejudices  belonging  to  that  side,  can  be  depended  upon 
as  those  of  fair  and  impartial  witnesses."  And  depositions  in  a  suit 
claiming  a  ferry  both  ways,  made  after  interlocutory  orders  for  pre- 
serving the  status  quo  until  a  final  decision  could  be  had,  which 
decision  was  never  made,  were  held  inadmissible  as  evidence  of 
reputation  to  prove  a  distinct  ferry  each  way." 

In  the  case  of  Tooker  v.  The  Duke  of  Beaufort,  the  depositions,  as 
well  as  the  return  to  the  Exchequer  under  a  commission  to  inquire 
whether  the  Prior  of  St.  Swithin  or  the  Crown  was  seised  of  certain 
lands  upon  the  dissolution  of  the  priory,  were  held  to  be  admissible 
r*42^1  ^^  evidence,  and  *the  depositions  seem  to  have  been  consid- 
ered as  standing  on  the  same  footing  with  the  return  itself/ 

A  deposition  between  any  parties  is  evidence  to  contradict  a 
witness,^  but  it  is  not  evidence  to  support  the  testimony  of  a 
witness.* 

'  Freeman  v.  Phillips^  4  M.  &  S.  486.  But  see  Banhury  Peerage  case,  2  Sel. 
N.  P.  763,  infra,  p.  439,  where  the  depositions,  although  purporting  therein  to 
be  made  by  relations,  were  held  not  admissible  without  proving  aliunde  the 
fact  of  the  relationship  of  the  deponents ;  and  see  Davies  v.  Morgan,  1  C.  &  J. 
591 ;  Monkton  v.  Attorney-General,  2  Russ.  &  M.  161. 

"  See  the  observations  of  Bayley,  J.,  4  M.  &  S.  495. 

"  Pirn  V.  Curell,  6  M.  &  W.  234.  y  Burr.  146. 

"■  12  Mod.  318 ;  2  How.  430,  s.  9,  12 ;  2  Keb.  384 ;  Bac.  Abr.,  Ev.  F. ;  see  R. 
V.  Buckworth,  Raym.  170,  A  former  deposition  of  the  witness  may  be  used  to 
impeach  his  testimony,  by  showing  omissions  or  variances  which  affect  his 
capacity  or  honesty  ;  but  according  to  The  Queen^s  case,  and  Bastard  v.  Smith, 
10  A.  &  E.  (37  E.  C.  L.  R.)  213,  the  depositions  must  be  produced  and  shown 
to  the  witness.  And  see  the  resolutions  of  the  judges  in  criminal  cases,  ante, 
p.  229.  An  examined  copy  is  sufficient  for  this  purpose :  Ilighfield  v.  Peake,  M. 
&  M.  (22  E.  C.  L.  R.)  no.  And  see  Davies  v.  Davies,  9  Car.  &  P.  (38  E.  C. 
L.  R.)  2.52;  Ewer  v.  jbnhrose,  4  B.  &  C.  (10  E.  C.  L.  R.)  25,  ante,  p.  227. 

'  What  a  man  liimself  who  is  livintr  has  sworn  at  one  trial  can  never  be  sriven 


EXAMINATIONS     UNDER     COMMISSION,     ETC.  423 

Formerly  the  courts  of  common  law  possessed  no  direct''  power  of 
procuring  the  evidence  of  witnesses  in  a  cause,  who  were  abroad, 
likely  to  die.  or  to  be  too  ill  to  attend  *the  trial,  or  out  of  r:c  i.^  it 
the  jurisdiction,  so  as  to  render  it  available  on  the  trial 
against  the  will  of  a  party.  It  was  therefore  provided  by  stat.  13 
Geo.  III.,  c.  63,  ss.  40  &  44,  that  where  an  action  is  brought  in  any 
of  the  courts  at  Westminster,  upon  a  cause  of  action  arising  in  India, 
the  court"  may  award  a  mandamus  to  the  judges  of  the  courts  of 
India  for  the  examination  of  Avitnesses ;  and  that  the  depositions, 
duly  taken  and  returned,  shall  be  deemed  as  good  and  competent 
evidence  as  if  the  witnesses  had  been  SAvorn  and  examined  vivd  voce.^ 
The  operation  of  this  provision  having  been  found  extremely  bene- 
ficial,  the  statute  1  AVill.  IV.,  c.  22,^  was  passed,  which,  after  recit- 

in  evidence  at  another  to  support  him,  because  it  is  no  evidence  of  the  truth; 
for  if  a  man  be  of  that  ill  mind  to  swear  falsely  at  one  trial,  he  may  do  the 
same  at  another,  on  the  same  inducements,  B.  N.  P.  242. 

^  The  only  course  was  to  file  a  bill  in  equity,  see  Bridges  v.  Fisher,  1  Bing. 
N.  C.  (27  E.  C.  L.  R.)  510,  per  Tindal,  C.  J.,  if  the  other  party  would  not  con- 
sent to  an  order  being  made  by  the  court.  But  the  court  frequently  coerced 
the  plaintiff  into  a  consent  by  postponing  the  trial,  unless  he  acquiesced  :  Furly 
V.  Newnham,  Dougl.  419  ;  CalUard  v.  Vaughan,  1  B.  &  P.  210  ;  Jones  v.  Brewer, 
4  Taunt.  46  ;  or  the  defendant  by  refusing  to  give  him  judgment  as  in  the  case 
of  a  non-suit.  Tidd.  Prac.  852.  Whether  the  Court  of  Exchequer  on  the  revenue 
side  has  such  power  in  revenue  cases  seems  to  be  very  doubtful :  Attorney-Gene- 
ral V.  Reilly,  13  M.  &  W.  676.  It  certainly  has  not  on  the  application  of  the 
defendant:  Attorney- General  v.  Bovett,  15  M.  &  W.  60;  B.  v.  Wood,  7  M.  &  W. 
571  ;  and  in  the  case  of  a  criminal  information  :  R.  v.  Upton  St.  Leonard,  17  L. 
J.,  M.  C,  13,  or  other  criminal  case,  it  has  no  such  power.  But  where  the 
witnesses  for  a  defendant  indicted  for  a  misdemeanor  resided  in  Scotland,  the 
court  obliged  the  prosecutor  to  consent  to  the  examination  of  the  witnesses 
before  one  of  the  courts  there:  per  Lord  Mansfield,  Mostyn  v.  Fahrigas,  Cowp. 
172 ;  and  see  R.  v.  Morphew,  2  M.  &  S.  602,  ante,  p.  412. 

"  Under  this  statute  a  judge  at  chambers  has  no  power  to  award  amandamus 
and  where  the  case  is  within  this  stat.,  the  stat.  1   Will.  IV.  c.  22,  does  not 
apply  :  Clarke  v.  East  India  Company,  18  L.  J.,  Q.  B.  23. 

*  See  Francisco  v.  Gilmore,  1  B.  &  P.  177  ;  Athins  v.  Palmer,  4  B.  &  Ad.  (24 
E.  C.  L.  R.)  377.  By  s.  40  similar  power  is  given  in  cases  of  indictments  and 
informations  in  Q.  B.  for  misdemeanors  and  oS'ences  committed  in  India,  but  in 
an  action  at  the  suit  of  the  Crown  the  court  has  no  power  to  issue  a  mandamus 
under  this  statute:  R.  v.  Wood,  9  Dowl.  310.  By  1  Geo.  IV.  c.  101,  the  evidence 
of  witnesses  in  India  may  be  obtained,  to  support  a  bill  of  divorce,  and  in  prose- 
cutions for  offences  committed  abroad,  by  persons  employed  in  the  public  ser- 
vice, the  evidence  of  witnesses  may  be  obtained  under  42  Geo.  III.  c.  85  ;  R.  v. 
Junes,  8  East  31.  And  see  54  Geo.  III.  c.  15,  made  for  facilitating  the  recovery 
of  debts  in  the  courts  of  New  South  Wales. 

"  As  to  the  practice  under  these  statutes  and  the  mode  for  applying  for  a  man- 


425    .  JUDICIAL     DOCUMENTS. 

ing  the  *former  Act,  provides/  that  these  powers  shall  be 
L  "^  -^  extended  to  all  colonies,  islands,  plantations,  and  places, 
under  the  dominion  of  his  Majesty  in  foreign  parts,  and  the  judges 
of  the  several  courts  therein,  and  all  actions  in  the  superior  courts 
of  Westminster  wherever  the  cause  of  action  may  have  arisen,  when 
it  shall  appear^  that  the  examination  of  witnesses  under  a  writ  or 
commission  under  the  authority  thereby  given  will  be  necessary  or 
conducive  to  the  administration  of  justice.  It  was  also  thought  ex- 
pedient to  extend  the  operation  of  the  former  enactment,  and  there- 
fore, by  s.  4,  it  is  enacted,  that  the  Courts  of  Law  at  Westminster, 
and  the  Court  of  Common  Pleas  of  Lancaster  and  County  Palatine 
of  Durham,  and  the  several  judges  thereof,  in  every  action  there  de- 
pending, may  order  the  examination  on  oath,  upon  interrogatories  or 
otherwise,  before  the  master,  or  other  person  or  persons  named  in 
the  order,  of  any  witness  within  the  jurisdiction  of  the  court ;  or 
order  a  commission  to  issue  for  the  examination  of  witnesses  on  oath 
at  any  place  out  of  the  jurisdiction,  and  by  the  same  or  any  subse- 

damus  or  commissions,  see  Archibold's  Practice,  Interrogatories,  and  post,  Vol. 
II.,  tit.  Witness.  In  this  volume  it  is  proposed  simply  to  treat  of  that  which 
affects  the  deposition  or  examination  when  tendered  in  evidence.  These  statutes 
only  apply  to  oral  evidence,  and  do  not  authorize  the  substitution  of  copies  of 
documents  or  secondary  evidence  of  their  contents  for  the  originals,  where  they 
are  produced.  Thus  a  witness  examined  at  Madras  under  the  stat.  13  Geo.  III. 
c.  63,  gave  in  evidence  certain  original  accounts ;  and  Lord  Denman,  C.  J.,  held 
that  copies  of  them  returned  with  the  examinations  by  the  Supreme  Court  of 
Madras  were  not  receivable,  but  that  the  ceurt  should  have  transmitted  the 
original  accounts  :  Reg.  v.  Douglasft,  1  C.  &K.  (47  E.  C.  L.  R.)  670.  And  where 
a  witness,  examined  on  interrogatories  abroad,  stated  the  contents  of  a  letter  not 
produced,  so  much  of  the  answer  as  related  to  the  letter  was  rejected,  although, 
the  witness  being  out  of  the  jurisdiction,  the  production  of  the  letter  could  not 
be  compelled  :  Steinkeller  v.  Newton,  9  Car.  &  P.  (38  E.  C.  L.  R.)  313.  If  a  wit- 
ness examined  upon  interrogatories  refers  to  a  document  which  he  describes  as 
a  legalized  copy  of  a  former  deposition  made  by  him,  and  which  he  states  that  he 
confirms,  but  which  is  not  authenticated  in  any  way,  it  is  not  admissible  :  Alcock 
V.  Royal  Exchange  Insurance  Company,  18  L.  J.,  Q.  B.  121.  But  the  fact  of  its 
appearing  on  the  deposition  that  the  deponent  referred  to  papers  not  shown  to 
the  commissioners  will  not  prevent  the  deposition  being  read  :  Steinkeller  v.  New- 
ton, 2  M.  &  Rob.  372.  As  to  objections  to  improper  interrogatories  or  questions, 
see  post,  pp.  433,  444. 

'Sect.  1. 

*  In  the  construction  of  this  statute  it  lias  been  held  to  be  immaterial  that  the 
action  is  of  a  criminal  nature,  e.  g.  for  crim.  con.  ;  it  is  sufficient  in  order  to  ob- 
tain the  commission  that  the  witness  is  out  of  the  jurisdiction  :  Norton  v.  Lord 
Melbourne,  :',  Ring.  N.  C.  (32  K.  C.  L.  R.)  67. 


DEPOSITIONS — TO     PERPETUATE    TESTIMONY.  426 

qucnt  order  to  give   directions  as  to  the  time,  manner,  and 
other  matters  *connected  with  the  examination.''     A  subse-    •-     "  -• 
quent   section,'  *however,  provides   that  no  examination   or 
deposition  taken  under  the  Act  shall  be  read  in  evidence  at    *-     "  -^ 
any  trial,  Avithout  the  consent  of  the  party  against  whom  it  shall  be 

''  With  respect  to  the  mode  in  which  the  commissioners  must  proceed,  cross- 
examinations  viva  voce  have  been  allowed  to  be  made,  such  examinations  being 
reduced  into  writing  and  returned  with  the  commission  :  Pole\.  Bodgers,  3  Bing. 
N.  C.  (32  E.  C.  L.  R.)  780.  When  the  commission  directed  that  the  examina- 
tions should  be  taken,  and  the  same  should  be  returned  with  the  commission,  and 
the  commission  having  been  directed  to  a  foreign  Court,  they  had  copies  of  the 
examinations  taken  and  certified  by  their  officer,  and  transmitted  those  copies 
under  the  seal  of  the  Court,  it  was  held  that  they  could  not  be  read  :  Clay  v. 
Stej)hensnn,  7  Ad.  &  E.  (34  E.  C.  L.  11- )  185.  But  where  the  commissioners 
were  directed  to  reduce  the  examinations  into  writing  in  English,  and  swear  an 
interpreter  to  translate  the  oath,  interrogatories,  and  depositions,  the  commis- 
sion was  deemed  well  executed  by  returning  the  original  depositions  in  the  for- 
eign language  as  originally  taken,  and  a  copy  translated  six  weeks  after  by  the 
interpreter:  Atkins  v.  Palmer,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  377.  And  where  a 
defendant,  having  obtained  an  order  to  postpone  a  trial  till  the  sittings  after  Ilil. 
Term,  and  for  a  commission,  and  a  commission  issued  to,  examine  witnesses 
abroad,  but  the  commission  was  not  returned  till  the  following  November,  the 
evidence  was  held  to  be  inadmissible,  and  the  Court  granted  a  new  trial :  Stein- 
keller  v.  Keivton,  8  D.  P.  C.  579.  The  examination  must  not  be  taken  till  after 
issue  joined:  Mondell  v.  Steele,  9  D.  P.  C.  812.  A  judge's  order  having  been 
obtained  by  the  plaintiff  to  examine  witnesses  abroad,  the  parties  agreed  upon 
A.  and  B.  as  commissioners.  The  plaintiff  obtained  another  order  to  examine 
witnesses  upon  interrogatories  without  describing  the  commissioners  by  their 
office,  or  referring  to  any  commission,  and  the  defendant  then  withdrew  the 
name  of  his  commissioner,  and  declined  to  proceed  on  the  gi'ound  of  the  plain- 
tiff's irregularity.  The  plaintiff  subsequently  obtained  another  order  ex  parte, 
to  examine  witnesses  before  A.  upon  interrogatories,  and  it  was  held  thajt  ex- 
aminations taken  under  this  order  were  admissible,  although  no  notice  of  the 
time  and  place  of  examination  had  been  given  to  the  defendant:  McCumbey  v. 
Anton,  6  M.  &  G.  (46  E.  C.  L.  R.)  27.  If,  however,  there  be  any  such  irregu- 
larity as  a  want  of  notice  of  the  time  and  place  of  executing  the  commission, 
preventing  the  other  party  from  cross-examining,  the  depositions  are  inadmissi- 
ble :  Steinkeller  v.  Newton,  9  C.  &  P.  (38  E.  C.  L.  R.)  313.  So  if  the  order 
does  not  pursue  the  statute,  not  naming  the  place  of  examination,  although  it 
be  inserted  in  the  commission  :  Greville  v.  Stulz,  11  Q.  B.  (63  E.  C.  L.  R.)  997 
But  the  order  need  not  be  produced,  and  its  not  naming  the  commissioners,  or 
the  commission  not  being  tested  in  term  is  no  objection  to  the  evidence  -.''•Nicol 
v.  Alison,  11  Q.  B.  (63  E.  C.  L.  R.)  1006.  If  the  witnesses  are  to  be  examined 
apart,  this  will  be  piesumed  to  have  been  done  ;  and  it  is  sufficient  to  prove 
that  the  commission  produced  is  the  same  that  issued,  and  to  identify  the 
signatures  of  the  commissioners  :  Simons  v.  Henderson,  11  Q.  B.  (63  E.  C.  L.  R.) 
1015. 

'  Sect.  10.     There  is  no  similar  provision  in  13  Geo.  III.  c.  63, 


427  JUDICIAL     DOCUMENTS. 

offered,  unless  it  shall  appear  to  the  satisfaction  of  the  ju(l<^e  that 
the  witness  is  beyond  the  jurisdiction,  or  dead,  or  unable,  from  per- 
manent sickness,  or  other  permanent  infirmity,  to  attend  the  trial :  in 
which  cases  the  examinations  and  depositions,  certified  under  the 
hand  of  the  commissioners,  master,  prothonotary,  or  other  person 
taking  the  same,  shall  and  may,  without  proof  of  the  signature  of 
such  certificate,  be  read  in  evidence,  saving  all  just  exceptions.  By 
the  Mercantile  Marine  Act''  also,  "  whenever  in  any  legal  proceeding 
in  England,  in  respect  of  any  matter  in  which  British  consular  offi- 
cers (see  sect.  82)  have  the  power  of  taking  depositions,  it  is  proved 
that  a  witness  who  has  been  examined  before  such  officers  abroad,  is 
out  of  the  United  Kingdom,  or  cannot  be  found  or  produced  on  the 
trial  or  hearing,  his  deposition  taken  before  such  officers  in  the 
matter,  and  if  the  proceeding  be  criminal,  in  the  presence  of  the 
party  accused,  and  certified  by  such  officer  under  his  official  seal  to 
be  so  taken,  shall  be  evidence ;  and  if  it  purport  to  be  so  certified, 
shall  be  deemed  to  have  been  so  taken  and  certified,  unless  the  con- 
trary is  proved." 

Where  a  subject-matter  is  likely  to  be  litigated  in  future,  but  can- 
not be  made  the  subject  of  immediate  investigation,  and  testimo'ny  is 
in  existence  which  is  in  danger  of  being  lost,  a  bill  in  equity  lies  to 
perpetuate  the  testimony  of  witnesses  in  order  to  prevent  the  hard- 
ship which  might  accrue  to  a  party  from  an  investigation  at  a  remote 
period,  when  death  had  deprived  him  of  them.^  This  proceed- 
L  "  J  ing  *may  be  resorted  to  whether  the  testimony  relates  to  real 
estate  or  a  mere  personal  demand ;  or  is  to  be  used  in  support  of  an 
action,  or  of  the  defence,  or  in  cases  of  public  or  private  penalties  or 
forfeitures.™  The  bill  to  perpetuate  testimony,  strictly  so  called, 
could  formerly  be  filed  only  by  persons  who  were  in  possession  under 
their  title,  and  therefore  could  not  sue  at  law ;  if  the  testimony  were 
required  by  persons  out  of  possession  it  was  obtained  by  a  bill  to 
take  testimony  de  bene  esse,  but  the  latter  could  be  filed  only  when 
an  action  was  actually  depending."  Hence  the  5  &  6  Vict.,  c.  69, 
has  enacted,  that  any  person  who  would,  under  the  circumstances 
alleged  by  him  to  exist,  become  entitled  upon  the  happeriing  of  any 

"  13  &  14  Vict.  c.  93,  8.  115. 

'  See  Angell  v.  Angeli,  1  Sim.  &  Stu.  89.  The  bill  will  be  defective  unless  it 
.state  that  the  matter  in  question  cannot  be  made  the  subject  of  immediate  in- 
vestif^ation  :  Ibid,;  see  also  Dew  v.  Clarke,  1  Sim.  &  Stu.  114. 

"  1  Story,  Eq.  Jur.  2d  ed.  ()65. 

■"  Ibid.  664. 


DEPOSITIONS — PRELIMINARY    PROOF.  428 

future  event  to  any  honor,  title,  dignity  or  office,  or  to  any  estate  or 
interest  in  any  property,  real  or  personal,  the  right  or  claim  to  which 
cannot  hy  him  be  brought  to  trial  before  the  happening  of  such  event, 
shall  be  entitled  to  file  a  bill  in  Chancery  to  perpetuate  any  testimony 
which  may  be  material  for  establishing  such  claim  or  right.  Before 
this  statute  a  bill  for  a  commission  to  examine  witnesses  abroad  in 
aid  of  a  trial  at  law,  where  a  present  action  might  be  brought,  was 
held  demurrable,  unless  it  averred  that  an  action  was  pending." 

*Where  an  old  witness  has  been  examined,  it  is  sometimes 
made  part  of  the  rule  for  a  new  trial  that  the  judge's  note  L     "  J 
of  his  evidence  shall  be  read  upon  the  new  trial.'' 

The  court  will  not  grant  a  mandamus  to  justices  of  the  peace  to 
produce  depositions  taken  on  a  charge  of  felony,  in  order  to  ground 
a  prosecution  for  perjury.''  But  the  magistrate  may  be  subpoenaed 
before  the  grand  jury,  who  may  found  a  presentment  on  his  evi- 
dence.' 

The  preparatory  facts  must  first  be  proved  which  warrant  the  re- 
ception of  the  evidence,  as  that  the  witness  is  dead,  insane  or  ab- 
sent, unless  lapse  of  time  negative  his  existence.^  Where  a  deposition, 
thirty-nine  years  old,  represented  the  witness  to  be  sixty,  it  was  held 
that  it  could  not  be  read  Avithout  proof  of  his  dfeath.'  The  absence 
of  witness  must  be  proved  by  some  one  who  can  speak  to  the  fact 
from  his  own  knowledge  ;  therefore,  proof  of  inquiries  and  the  an- 
SAvers  in  reply  to  them  at  his  residence,  is  not  enough."  And  proof 
that  on   the   evening  before  the  trial,  he   was   with  his  luggage  on 

°  Angell  v.  Angell,  1  Sim.  &  Stu.  91,  But  see  Moodalay  \.  Morton,  2  Dick. 
652 ;  1  Bro.  P.  C.  469  ;  dub.  Phillips  v.  Carew,  1  P.  Wms.  117.  Upon  a  petition 
of  right  a  conimission  issued,  and  an  inquisition  was  thereupon  found  and  re- 
turned into  Chancery.  Before  any  other  proceeding  the  suppliant  filed  a  bill 
against  the  Attorney-General  to  perpetuate  testimony,  reciting  the  petition,  and 
a  commission  to  examine  witnesses  issued  thereon  ex  parte,  the  Crown  declining 
to  join.  The  Crown  traversed  the  inquisition,  and  the  record  was  sent  into  the 
Q.  B.  The  Court  held  that  the  depositions  taken  under  this  commission  were 
taken  in  a  proceeding  substantially  the  same,  and  were  admissible,  the  wit- 
nesses being  out  of  the  jurisdiction:  Baron  de  Bode's  case,  8  Q.  B.  (55  E.  C. 
L.  R.)  208. 

P  ShilUto  V.  Claridge,  2  Ch.  42G  ;  and  see  ante,  p.  408,  n.  (r), 

1  1  Chitty  627. 

'  Ibid. 

"  Benson  v.  Olive,  in  Scacc.  Stra.  920,  where  the  deposition  was  sixty  years 
old. 

'  1  Ford's  MSS.  146  ;  Stra.  920. 

°  Robinson  v.  Markis,  2  M.  &  Hob.  375. 
26 


429  JUDICIAL    DOCUMENTS. 

board  a  ship  bound  to  Montreal,  then  three-quarters  of  a  mile  below 
Gravesend,  waiting  for  the  captain  to  come  on  board,  will  not  suffice/ 
But  in  Varicas  v.  French,''  proof  by  a  person  that  he  has  prepared 
the  outfit  for  Australia  of  a  witness  examined  under  a  judge's  order, 
and  had  seen  him  start  by  the  railway  to  go  on  board  the  ship  for 
that  place,  Avhich  lay  at  Gravesend;  and  that  he  had  received  two 
letters  from  him,  one  from  Sheerness  and  the  other  from  Plymouth, 
was  held  sufficient,  by  Coleridge,  J.,  to  satisfy  him  that  the  witness 
was  abroad  ;  and  his  examination  before  the  master  was  read. 
r*4^0"l  *Next,  it  must  be  proved  that  such  a  cause  existed,^  in 
order  to  show  the  admissibility  of  the  oath  of  the  witness; 
for  if  no  cause  existed,  the  oath  was  nothing  more  than  a  voluntary 
affidavit.^  And  also  that  it  was  between  the  same  parties ;  thus 
where  on  a  former  trial  a  deed  was  given  in  evidence  on  the  part  of 
the  defendant,  and  the  limitations  in  it  were  stated  in  court  by  the 
defendant's  counsel,  a  copy  of  the  shorthand-writer's  notes  of  that 
statement  was  held  inadmissible  in  another  action  by  the  same  plain- 
tiff against  another  defendant."'  Although  the  bare  production  of 
ih.e  postea,  witliout  proof  of  final  judgment,  be  no  evidence  of  the 
verdict,  for  judgment  may  have  been  arrested,  or  a  new  trial 
granted,  yet  it  is  good  evidence  that  a  trial  was  had  between  the 
same  parties,  so  as  to  introduce  the  evidence  of  a  witness  (who  is 
since  dead)  at  the  trial.''  And  so  it  is  on  an  indictment  for  perjury." 
Where  the  deposition  has  been  taken  in  Chancery  it  is  necessary 
to  prove  the  bill  and  ansAver,''  in  order  to  show  the  existence  of  a 
lawful  cause,  and  that  the  depositions  relate  to  the  same  matter. 
And,   therefore,    exemplified   depositions   in   the   Duchy  Court   were 


^  Carruthers  v.  Graham,  Car.  &  M.  (41  E.  C.  L.  R.)  5.  See  sect.  10;  but  see 
also  ante,  p.  412. 

"2  Car.  &  K.  (61  E.  C.  L.  R.)  10G8. 

y  Where  the  order  for  the  examination  is  made  under  either  of  the  statutes 
above  mentioned,  as  it  will  have  been  made  in  the  action,  which  the  date  of  the 
writ  on  the  record  will  show  to  have  been  previously  brought,  this  preliminary 
proof  is  unnecessary. 

'  B.  N.  P.  242  •,  1  Raym.  730  ;  12  Vin.  Abr.,  Ev.  A.,  b.  61,  pi.  16. 

»  JJoe  dem.  Gilbert  v.  lioss,  7  M.  &  W.  102. 

"B.  N.  P.  243;  1  Stra.  162. 

•=  B.  N.  P.  243  ;  E.  v.  Iks,  M.  14  Ceo.  II.  cor.  Raymond. 

"^  JJ II lion's  case,  Trial  at  Bar.  Raym.  33r) ;  Vin.  Abr.,  Ev.  A.,b.  31,  pi.  12; 
(iilb.  Law  of  Ev.  56  ;  B.  N.  P.  240;  lllingworlh  v.  Leigh,  4  Gvvill.  1619  ;  Bjjam 
v.  Jioolh,  2  Price  234,  n. ;  Baker  v.  Sweet,  Bunb.  91.  If  the  bill  is  dismissed 
for  informality,  see  2  P.  Wms.  162. 


DEPOSITIONS — PRELIMINARY    PROOF.  430 

held  to  be  inadmissible,  because  the  answer  was  not  exemplified/ 
But  where  the  Court  of  Chancery  makes  an  order,  on  directing  an 
issue  at  law,  that  the  depositions  shall  be  read,  proof  of  *the  r^^oj-i 
bill  and  answer  is  not  necessary/  And  where  the  bill  and 
answer  have  been  lost,  they  may  be  supplied  by  other  memorials.* 
And  ancient  depositions  have  been  admitted  without  proof  of  the 
bill  and  answer,  because  formerly  they  were  not  enrolled,  and  were 
liable  to  be  lost.*"  The  depositions  may  be  used,  although  the  bill 
has  been  dismissed  on  the  ground  that  the  court  considered  the  mat- 
ter unfit  for  a  decree  in  equity.*  Where  evidence  has  been  given 
upon  the  trial  of  an  issue  directed  by  a  Court  of  Equity,  upon  a  bill 
filed  by  a  party,  it  is  no  objection  to  the  receiving  upon  the  trial  of 
an  ejectment  between  the  same  parties  the  evidence  of  a  witness  ex- 
amined on  the  trial  of  that  issue,  that  the  bill  has  since  been  dis- 
missed.'' Depositions  taken  by  order  of  Queen  Elizabeth,  on  peti- 
tion, without  bill  and  answer,  were  allowed  to  be  read.'  Where  de- 
positions in  a  suit  in  equity  are  given  in  evidence  at  law,  and  the  bill 
and  answer  are  put  in  to  show  that  the  depositions  are  admissible,  the 
bill  and  answer  cannot  be  referred  to  by  the  opposite  counsel  in  his 
address  to  the  jury.™^ 

« Clay  9 ;  Vin.  Abr.,  Ev.  A.,  b.  31. 

^Palmer  v.  Lord  Aylesbury,  15  Ves.  176;  Corbet  v.  Corbet,  1  A^es.  &  Beamee 
340. 

^Barhfs  case,  5  Mod.  210 ;  Vin.  Abr.,  Ev.  A.,  b.  36,  pi.  33. 

^  2  Keb.  31 ;  Law  of  Ev.  113,  65,  2d  ed. ;  Byam  v.  Booth,  2  Price  231  ;  IlUng- 
ivoi-th  V.  Leigh,  4  Gwill.  1615;  R.\.  Countessof  Arundel,  Yloh.  112.  Depositions 
taken  under  a  commission  issuing  out  of  the  Exchequer  cannot  be  read  without 
producing  the  commission,  unless  they  are  of  so  long  standing  as  to  afford  a 
presumption  that  the  commission  is  lost :  Bayley  v.  Wylie,  6  Esp.  85.  But,  if 
the  commission  be  produced,  it  is  not  necessary  to  produce  the  bill  and  answer 
upon  which  the  commission  was  granted:  Ibid.  Of  course  answers  to  inter- 
rogatories may  be  used  as  admissions,  although  some  of  the  answers  are  not 
intelligible  of  themselves:  Rowe  v.  Brenton,  8  B.  &  C.  (15  E.  C.  L.  R.)  765. 

'  Hall  V.  Hoddesdo7i,  3  P.  Wras.  162. 

^  Wright  V.  Doe  d.  Tatham,  1  Ad.  &  E.  (28  E.  C.  L.  R.)  3. 

•Hob.  112. 

"  Chappell  v.  Purday,  14  M.  &  W.  303. 

^  Statutes  authorizing  depositions  are  in  derogation  of  the  common  law.  and 
must  be  strictly  pursued :  Graham  v.  Whitely,  2  Dutch.  203 ;  Williams  v.  Chad- 
bourne,  6  Cal.  559.  An  order  to  take  testimony  by  deposition  should  specify 
the  notice  to  be  given  to  the  adverse  party,  and  a  deposition  taken  upon  an 
order  without  such  notice,  where  the  opposite  party  has  not  had  reasonable 
notice,  ought  not  to  be  read  :  Ellis  v.  Jasynsky,  5  Cal.  444.  A  justice  compe- 
tent to  administer  an  oath  in  a  foreign  state  is  competent  to  take  depositions, 


431  JUDICIAL     DOCUMENTS. 

In  ordinary  cases,  it  seems  to  be  sufficient  to  prove  that  the  depo- 
sition was  signed  by  the  Master;  but  upon  an  *indictnient  for 
L       "-'    perjury  the  identity  of  the  deponent  must  be  strictly  proved." 

°3  Mod.  116,  117;  see  tit.  Perjury.  Lord  Holt,  in  one  case  (Ld.  Eaym. 
734),  held  that  it  should  be  proved  by  the  examiner  thai  the  depositions  were 
taken  on  the  day  of  their  date. 

and  his  statement  in  the  caption  or  certificate  that  he  sustains  that  character  is 
prima  facie  proof  of  the  fact:  Hoover  v.  Raxdin(js,  1  Sneed  287.  It  is  irregular 
in  taking  depositions  to  adjourn  from  the  place  where  the  adverse  party  has 
been  served  with  notice  to  attend,  to  another  place,  in  the  absence  of  such 
party:  Beach  v.  Workman,  20  N.  II.  379.  The  certificate  of  a  justice  of  the 
peace,  before  whom  a  deposition  is  taken,  is  good  evidence  of  an  agreement  be- 
tween the  parties  to  change  the  place  of  taking :  Fry  v.  Coleman,  1  Grant  445. 
The  deposition  of  a  witness  taken  in  another  cause  between  the  same  parties, 
cannot  be  read  without  showing  that  he  is  dead  or  not  within  the  jurisdiction 
of  the  court :  Sadler  v.  Anderson,  17  Tex.  245.  Whether  the  preliminary  ground 
of  non-residence  can  be  proved  by  the  deposition  itself,  see  Grinnan  v.  Mackbee, 
29  Mo.  345 ;  Nevan  v.  Roup,  8  Clarke  207.  It  seems  that  when  a  witness  has 
given  his  deposition,  and  afterwards  on  being  called  his  memory  of  the  transac- 
tion fails,  his  deposition  may  be  read  by  the  party  calling  :  Jacks  v.  Woods,  5 
Cas.  375.  The  failure  of  a  witness  to  make  a  substantial  answer  to  a  proper 
interrogatory,  either  in  his  answer  to  that  particular  interrogatory  or  elsewhere 
in  his  deposition,  is  good  ground  for  suppressing  his  deposition  :  Harris  v.  Miller, 
20  Ala.  221.  An  interrogratoi-y,  not  objected  to  when  a  deposition  is  taken,  in 
presence  of  the  adverse  party,  cannot  be  objected  to  at  the  trial:  Willey  v. 
Portsmouth,  35  N.  11.  303.  Cross-examining  a  witness  is  a  waiver  of  objections 
to^the  insufficiency  of  notice  :  Jones  v.  Love,  9  Cal.  68,  The  fact  that  a  deposi- 
tion contains  inadmissible  evidence  is  not  a  good  reason  for  excluding  it  alto- 
gether: Hamilton  v.  Scull,  25  Mo.  165;  Hempstead  v.  Johnston,  18  Ark.  123; 
Chamberlain  v.  Masterson,  29  Ala.  299.  By  o9"ering  and  reading  in  evidence 
parts  of  a  deposition,  the  party  in  whose  behalf  it  was  taken  does  not  make  the 
whole  of  it  evidence,  or  make  irrelevant  or  incompetent  answers  admissible : 
Gellatty  v.  Loicery,  6  Bosw.  113.  When  a  commissioner  is  appointed  to  take 
depositions,  it  is  improper  for  the  witness  to  produce  his  deposition  written  by 
himself,  not  in  the  presence  of  the  magistrate :  Foster  v.  Foster,  20  N.  II.  208. 
A  deposition  under  a  commission  should  be  taken  in  the  absence  of  those  inter- 
ested in  the  suit:  Sayler  v.  Stewart,  5  Wis.  8.  At  the  taking  of  a  deposition 
under  a  commission  out  of  the  State,  no  agent  or  attorney  of  either  party  should 
be  allowed  to  be  present:  Walker  v.  Barron,  4  Minn.  253,  It  is  not  a  ground 
of  objection  to  a  deposition  that  it  was  reduced  to  writing  by  the  deponent  in 
the  presence  of  the  commissioner :  Fisk  v.  Tank,  12  Wis.  276.  A  deposition  is 
admissible  when  the  deponent  was  a  competent  witness  at  the  time  it  was  taken, 
although  at  the  time  of  the  trial  he  is  not  so  :  Cameron  v.  Cameron,  15  Wis.  1  ; 
Midford  v.  jMinch,  3  Stock.  16.  A  release  of  interest  after  deposition  does  not 
render  it  admissible:  Bell  v.  Woodward,  46  N.  II.  315,  The  authority  to  take 
a  deposition  is  sufficiently  shown  by  proof  that  the  person  taking  it  was  an 
acting  commissioner  or  notary:    Wells  v.  Jackson,  47  N.  II.  235.     A  deposition 


DEPOSITIONS — HOW     PROVED.  432 

A  deposition  may  be  proved  by  an  examined  copy;"  office  copies, 
though  admissible  in  equity,  are  not  admissible  in  a  court  of  hiw. 
Upon  the  trial  of  an  issue  directed  by  the  Court  of  Chancery  to  try 
the  validity  of  an  alleged  deed  of  gift,  it  was  held  that  an  office 
copy  of  a  deposition  made  by  the  plaintiff's  brother  in  the  suit  in 
equity,  and  which  was  proved  to  have  been  examined  with  the  origi- 
nal, was  admissible  to  contradict  the  witness. p  The  party  reading 
the  deposition  must,  as  part  of  his  own  case,  read  also  the  answer 
to  the  cross-interrogatories,  abandoning  the  rest.''  But  he  may  read 
part,  where  the  rest  is  inadmissible,  as  purporting  to  state  the  con- 
tents of  a  letter  which  is  not  produced.'"  As  observed  before,  upon 
a  trial  of  an  issue  at  law,  directed  by  the  Court  of  Chancery,  depo- 
sitions will  be  allowed  to  be  read,  under  an  order  of  the  Court  of 
Chancery,  without  proof  of  the  bill  and  answer.^     Such  an  order  is 

"  Gilb.  Law  of  Ev.  21  ;  B.  N.  P.  229  ;  Stark.  C.  13. 

P  Ilighjield  v.  Peake,  M.  &  M.  (22  E.  C.  L.  R.)  109 ;  coram  Littledale,  J.,  who 
said,  that  this  being  an  issue  out  of  Chancery  might  be  considered  as  a  pro- 
ceeding in  that  Court,  and  therefore  that  the  office  copy  according  to  the  case 
of  Dunn  v.  Futford,  2  Burr.  1179,  might  be  considered  to  be  good  evidence. 
In  the  case  of  Bees  dan.  Howell  v.  Bowen,  1  McC.  &  Y.  383,  the  Court  of  Ex- 
chequer is  reported  to  have  held  that  an  examined  copy  of  an  affidavit,  made  for 
the  purpose  of  obtaining  an  injunction,  w-^as  not  admissible;  but  see  M.  &  M. 
(22  E.  C.  L.  R.)  Ill  ;  Eiver  v.  Ambrose,  4  B.  &  C.  (10  E.  C.  L.  R.)  25 ;  Ilennell 
v.  Li/on,  1  B.  &  A.  182. 

1  Temijerley  v.  Scott,  5  C.  &  P.  (24  E.  C.  L.  R.)  341. 

■■  Wheeler  v.  Atkins,  5  Esp.  C.  246.  Even  although  it  be  part  of  an  entire 
answer  to  one  question,  Tufton  v.  Whitmore,  12  Ad.  &  E.  (40  E.  C.  L.  R.)  370 ; 
and  though  the  answers  state  the  contents  of  writings  inadmissible  in  evidence  : 
M'Intyre  v.  Lmjard,  R.  M.  (21  E.  C.  L.  R.)  203. 

^  Palmer  v.  Lord  Aylesbury,  15  Ves.  176  ;   Corbet  v.  Corbet,  1  Ves.  &  B.  340. 

written  by  attorney  of  the  party  will  be  suppressed  :  Hurst  v.  Larpin,  21  Iowa 
484.  Where  a  substantial  answer  is  given  to  a  cross-interrogatory,  and  there  is 
nothing  to  justify  the  conclusion  that  the  witness  was  seeking  to  evade  a  dis- 
closure, the  deposition  will  not  be  suppressed  :  Aicardi  v.  Strang,  38  Ala.  326. 
A  deposition  will  not  be  suppressed  on  account  of  a  failure  to  answer  a  question, 
if  the  facts  sought  to  be  elicited  can  be  ascertained  from  other  parts  of  the  de- 
position or  are  immaterial:  Black  v.  Black,  38  Ala.  111.  As  to  irregularities 
in  the  form  of  the  depositions,  certificate,  &c.,  see  Wells  v.  Jackson  ,47  N.  H. 
235;  Field  v.  Tenney,  Ibid.  513;  Lund  v.  Dawes,  41  Vt.  370;  New  Jersey  Ex. 
Co.  V.  Nichols,  3  Vroom  166  ;  Ballard  v.  Perry,  28  Tex.  347  ;  Pralus  v.  Pacific 
Co.,  35  Cal.  30;  Trout  v.  Williams,  29  Ind.  J8;  Cook  v.  Bell,  18  Mich.  387. 
The  fact  that  the  testimony  of  a  witness  was  not  taken  down  in  a  deposition  by 
the  magistrate  is  no  objection  to  its  admissibility,  unless  it  also  appear  that  it 
was  written  by  the  party,  his  agent  or  attorney  :  Crossgrove  v.  Himmclrich,  4 
P.  F.  Smith  203. 


433  JUDICIAL     DOCUMENTS. 

not  made  for  the  purpose  *of  making  that  evidence  Avhich 
•-  J  would  not  otherwise  be  admissible;'^  and  depositions  under 
such  an  order  are  not  admissible  without  proof  at  the  trial  that  the 
deponents  cannot  attend  in  person.  Where  the  evidence  of  a  witness 
upon  a  former  trial  is  adduced,  the  evidence  itself  must  be  proved  on 
oath,  or  by  the  notes  of  the  judge  who  tried  the  case.*  And  in  Lord 
Palmerston  s  case  the  evidence  was  rejected,  because  the  witness 
could  give  the  effect  only  of  the  evidence,  and  not  the  words." 
Where  a  witness  on  a  former  trial  of  an  issue  out  of  Chancery  died, 
and  a  new  trial  was  granted,  parol  evidence  of  what  such  witness  had 
sworn  was  held  to  be  admissible,  notwithstandinoj  an  order  for  reading 
the  depositions  in  equity  of  such  witnesses  as  had  died  since  the  first 
trial.^  The  copy  of  the  deposition  of  a  person  examined  upon  inter- 
rogatories at  the  Chief  Justice's  chamber,  signed  by  the  Chief  Justice, 
and  received  from  his  clerk,  must  be  taken  prima  facie  to  be  a  correct 
copy  of  what  has  been  sworn  by  such  witness ;  and  the  original  ex- 
amination need  not  be  produced,  until  some  suspicion  of  forgery  is 
thrown  upon  the  signature  of  the  deponent.''  Where  the  deposition 
has  been  taken  under  the  statute  7  Geo.  IV.,  c.  64,  it  must  be  shown 
that  the  requisites  of  the  statute  have  been  complied  with.'' 

It  is  no  objection  at  the  trial  that  the  interrogatories  were  leading 

ones,  where  the  party  might  have  objected*  *to  their  being 

'-         -^    put,  and  did  not.      But  answers  to  improper  questions  put 

upon  an  examination  under  1  Will.  IV.,  c.  22,''  may  be  objected  to 

and  excluded  a.t  nisi  prius,  but  not  by  the  party  who  put  the  questions. 

Where  the  interrogatories  to  certain  tenants  at  assize  session  courts, 

"  15  Ves.  170 ;  but  see  Doe  v.  Wriglit,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  3. 

•  1  Sid.  325 ;  Law  of  Ev.  31 ;  Bac.  Abr.,  Ev.  F. ;  Mayor  of  Doncaster  v.  Day, 
3  Taunt.  262. 

"  4  T.  R.  296.  Qu.,  whether  so  great  exactness  is  necessary  ;  even  an  indict- 
ment for  perjury  sets  out  the  substance  only.  Where  the  witness  deposing  as 
to  what  the  defendant  swore  on  trial,  stated  that  he  could  not  swear  he  had 
stated  all  which  fell  from  the  prisoner,  but  would  swear  that  he  had  said 
nothing  to  qualify  it;  it  was  held  sufficient:  Rowley'' s  case,  Ry.  &  M.  (14  E.  C. 
L.  R.)  HI. 

^  Tod  V.  FmyI  of  Winchehea,  3  C.  &  P.  (14  E.  C.  L.  R.)  387. 

^  Duncan  v.  Scott,  1  Camp.  100. 

•  See  tit.  Dispositions,  and  11  &  12  Vict.  c.  42. 

•  Williams  V.  Williams,  4  M.  &  S.  497. 

*'  JIntckinson  v.  Bernard,  2  M.  &  Rob.  1,  or  answers  whicli  involve  inadmissi- 
ble matter:  e.  (j.,  the  contents  of  written  documents:  Steinkeller  v.  Newton,  9 
Car.  &  F.  (38  E.  C.  L.  R.)  313.  But  that ^>»ar^  only  of  an  entire  answer  will  be 
rejected  which  involves  such  matter:  Tuflon  v.  W kitmore,  12  Ad.  &  E.  (40  E. 
C.  L.  R.)  307. 


DEPOSITIONS — now    PROVED.  434 

upon  proper  search  could  not  be  found,  it  was  held  that  the  answers 
might  be  read,  subject  to  the  consideration,  whether  their  effect  would 
not  be  destroyed  bj  any  ambiguity  which  might  arise  from  tlic  want 
of  those  questions." 

Depositions  taken  in  ecclesiastical  causes  before  courts  of  compe- 
tent jurisdiction  are  admissible  on  the  same  principles  which  warrant 
the  receiving  such  evidence  in  other  cases. "^  There  are  indeed  several 
cases  to  the  contrary,  but  as  these  are  founded  principally  upon  the 
objection  that  Ecclesiastical  Courts  are  not  courts  of  record,  and 
partly  on  the  objection  that  their  proceedings  are  governed  by  the 
rules  of  the  civil  law,  it  seems  to  be  unnecessary  to  discuss  them  at 
length.  The  reception  of  depositions  in  equity  is  an  answer  to  the 
first  objection;  and,  as  to  the  second,  it  may  be  answered,  that  the 
principles  on  which  depositions  in  other  causes  are  held  to  be  receivable 
in  courts  of  common  law,  are  quite  independent  of  the  use  to  be  made 
of  such  depositions.  It  is  sufficient  that  the  court  possess  jurisdic- 
tion such  as  to  warrant  the  punishment  of  one  who  swears  falsely, 
and  that  the  adverse  party  had  due  notice  and  opportunity  to  cross- 
examine  the  witnesses.  Upon  the  same  principles,  it  seems  that  a 
deposition   before  commissioners  of  excise  having  power  to 


* 


inquire  as  to  forfeitures,  is  admissible  upon  an  appeal,  in 


[*435] 


case  of  the  death  of  the  deponent.® 

The  third  class  into  which  judicial  documents  are  divided  consists 
of  documents  incidental  to  judicial  proceedings,  such  as  writs,  war- 
rants, pleadings,  and  bills  and  answers  in  Chancery. 

Writs  and  warrants  are  in  general  evidence  to  show  the  mere 
fact  of  their  existence,  whenever  it  becomes  material,  against  all  the 
world  ;  for  the  issuing  or  existence  of  a  writ  is  a  mere  fact.  Before 
the  Uniformity  of  Process  Act,  when  the  proceeding  was  by  original, 
or  in  the  Common  Pleas,  the  writ  Avas  evidence  to  show  that  the 
action  was  commenced  earlier  than  it  appeared  to  have  been  by  the 
record,  which  was  entitled  of  the  term  in  which  issue  was  joined.^ 
Accordingly,  where  in  an  action  on  an  attorney's  bill  in  tliat  court, 
it  appeared  that  the  bill  had  been  delivered  September  30th  1797, 
and  the  record  was  entitled  of  Hilary  1798,  it  was  held  to  be  incum- 
bent on  the  defendant  to  show  by  the  writ  that  the  action  had  been 
in   fact   commenced   before  the  expiration   of   the   month. ^     So   the 

<=  Roioe  V.  Brenton,  8  B.  &  C.  (15  E.  C.  L.  R.)  765. 

^  Gilb.  Law  of  Ev.  60.     See  the  cases  as  to  this,  ante,  p.  417. 

®  Accordin<2;  to  the  opinion  of  Lord  Holt  in  Breedon  v.  Gill,  1  Ld.  Raym.  219 

'  Webb  V.  Pritchcft,  1  B.  &  P.  263. 

e  Ibid. 


435  JUDICIAL    DOCUMENTS. 

plaintiff,  in  order   to  save  the  Statute  of  Limitations,  or  a  tender, 

naigbt  give  in  evidence  a  bill  of  Middlesex,  or  latitat.''^ 

.-.  .^^-^      Where  goods  are  seized  under  a  iieri    facias,  if  the  *de- 

r*4361  ^  .  ... 

L         J   fendant  himself  bring  an  action  against  the  sheriff  or  bailiff' 

for  seizing  them,  it  will  be  suflBcient  for  him  to  prove  the  writ,  but  if 
the  action  be  brought  by  a  person  claiming  by  virtue  of  a  prior  exe- 
cution, or  a  sale  which  was  fraudulent,  the  officer  must  prove  the 
judgment  as  well  as  the  Avrit ;  for,  in  the  first  case,  by  proving  that 
he  took  the  goods  in  obedience  to  a  writ  issued  against  the  plaintiff, 
he  shows  that  he  has  committed  no  trespass ;  but,  in  the  latter  cases, 
they  are  not  the  goods  of  the  party  against  whom  the  writ  issued, 
and  the  officer  is  not  justified  in  taking  them,  unless  he  can  bring  the- 
case  within  the  stat.  13  Eliz.,  for  which  purpose  it  is  necessary  to 
show  a  judgment,''  For  the  writ  itself  is  a  justification  for  seizing 
the  goods  of  the  defendant ;  but  if  those  goods  be  claimed  by  another 
under  a  colorable  title,  as  the  officer  must  show  that  the  act  of 
transfer  from  the  defendant  was  fraudulent,  and  therefore  void  as 
against  a  judgment  creditor ;  he  must  show  that  a  judgment  existed. 
Accordingly,  where  A.  brought  an  action  of  trespass  against  the 
sheriffs,  who  proved  a  fieri  facias  against  the  goods  of  i?.,  but  did 
not  prove  a  copy  of  the  judgment ;  after  a  verdict  for  the  plaintiff 
upon  the  point  reserved,  the  court  held  that  the  judgment  ought  to 
have  been  proved  ;  but  because  it  appeared  that  the  goods  were  in 
fact  the  goods  of  B.,  and  that  his  conveyance  of  them  to  A.  B., 
himself  remaining  in  possession  of  them,  was  fraudulent,  the  court 
granted  a  new  trial. ^ 

Where  in  ejectment  the  lessor  plaintiff  claimed  under  a  sale  upon 

^  1  Sid.  53  ;  Dacy  v.  Clinch,  Ibid.  60 ;  Crokat  v.  Jones,  Str.  734  ;  Ld.  Raym. 
1441  ;  2  Burr.  961  ;  3  Burr.  1243  ;  Foster  v.  Bonner,  Cowp.  454.  But  in  the  case 
of  writs  which  have  been  issued  and  continued  to  obviate  the  Statute  of  Limita- 
tions, the  Uniformity  of  Process  Act  requires  that  each  writ  shall  be  returned 
within  one  month  of  its  expiration  and  entered  of  record,  and  that  it  shall  have  a 
memorandum  of  the  first  writ  and  return  indorsed  upon  it.  These  facts  must  be 
proved,  not  merely  by  the  production  of  the  writs  and  the  record,  but  by  extrinsic 
evidence:  Iliygs  v.  Mortimer,  I  Ex.  711;  Walker  v.  Collick,  4  Ex.  \7\;  Prit- 
chard  v.  Ihijshmc,  20  L.  J.,  C.  P.  161  ;  and  see  further  as  to  this,  Vol.  II.,  tit. 
Limitations. 

'  Andreu-s  v.  Marris,  1  Q.  B.  (41   E.  C.  L.  E.)  3. 

»  B.  N.  P.  234. 

'  Martin  v.  Podger,  Burr.  2361  ;  and  see  Lake  v.  Billers,  Lord  Raym.  733  ;  see 
also  Ackworthy.  Kewpe,  Doug.  40.  But  this  may  be  supplied  by  the  plaintiff 
putting  in  tlio  warrant  or  writ,  reciting  it:  Jicssey  v.  Wyndham,  6  Q.  B.  (51  E. 
C.  L.  R.)  1 60;  and  see  Corhclt  v.  Grey,  post,  446,  note  (a). 


WRIT  S — W  A  11  R  A  N  T  S — W  HEN    ADMISSIBLE.  436 

a  fieri  facias,  in  an  action  by  himself  against  the  defendant  in  eject- 
ment, the  court  held  that  he  was  bound  to  prove  the  judgment  as 
well  as  the  writ,  being  privy  to  his  own  judgment.™  In  order  to 
prove  the  *crime  of  murder  against  the  party  who  kills  an  r-^,cy„-, 
officer  in  the  execution  of  civil  mesne  process,  it  is  necessary  ■-  '"*  -' 
to  prove  the  writ  as  well  as  the  warrant  from  the  sheriff."  And  so 
it  is  in  case  of  a  justification  by  an  officer  in  the  execution  of  such 
process."  Upon  issue  taken  upon  a  plea  of  2jZ(?we  adminisfravit,  proof 
of  an  execution  is  not  evidence  without  the  judgment,  for  without  it 
there  appears  to  be  no  authority  for  the  execution. p 

As  the  sheriff  is  a  public  officer  and  minister  of  the  court,  credit 
is  given  to  the  statement  upon  his  return,  as  to  his  official  acts.  Thus, 
in  the  case  of  Cryfford  v.  Woodgate,'^  in  an  action  for  maliciously 
suing  out  an  alias  fieri  facias,  after  a  sufficient  levy  under  the  first, 
it  was  held,  that  the  sheriff's  return  upon  the  two  writs,  which  had 
been  produced  in  evidence  by  the  plaintiff  as  part  of  his  case,  in 
which  the  sheriff  stated  that  he  had  forborne  to  sell  under  the  first, 
and  had  sold  under  the  second  writ,  by  the  request  and  with  the  con- 
sent of  the  plaintiff  himself,  were  jjrimd  facie  evidence  of  the  facts 
so  returned.  So  if  the  sheriff  return  a  rescue,  the  court  will  so  far 
give  credence  to  such  return  as  to  issue  an  attachment  in  the  first 
instance ;  though  upon  an  indictment  for  rescue  it  would  be  open  for 
the  defendant  to  show  that  the  return  was  fiilse.'  The  sheriff's 
return,  that  he  has  levied,  is  no  proof  that  he  has  paid  over  the 
money  levied  to  the  execution  creditor  f  his  endorsement  on  the 
writ  is  evidence  against  himself.' 

The  writ  either  has  been  returned,  or  it  has  not;  if  it  has  been 
returned,  it  is  a  record,  and  should  be  proved  in  *the  same  p^.oo-i 
manner  as  any  other  record."  If  the  writ  has  not  been  re-  ^  -I 
turned,  the  original  should  be  produced. 

"  Doe  dem.  Bland  v.  ^mith,  2  Stark.  C.  (3  E.  C.  L.  R.)  p.  199.  For  the 
effects  0^  writs  and  warrants,  &c.,  as  a  justification  of  the  olHcer,  see  Andrews  v. 
Harris,  1  Q.  B.  (41  E.  C.  L.  R.)  3  ;  and  tit.  Officer,  Homicide,  &c. 

°  R  V.  Mead,  cor.  Wood,  B.,  2  Stark.  C.  (3  E.  C.  L.  R.)  205. 

°  3  Lev.  63.  p  Per  Holt,  J.,  Tr.  per  Pais  227. 

9  11  East  296.  '  R.  v.  Elkins,  4  Burr.  2129. 

"  Cater  v.  Stokes,  1  M.  &  S.  599. 

t  See  tit.  Sheriff,  and  Martin  v.  Bell,  1  Stark.  C.  (2  E.  C.  L.  R.)  413. 

"  Vide  supra,  p.  257,  et  seq.  Thus,  in  case  against  the  sheriff  for  a  false  re- 
turn to  aji.fa.  brought  in  the  same  court  as  the  original  action,  office  copies  of 
ihe  writ  and  return  (not  being  also  examined  copies)  were  rejected  by  Lord  Den- 
man,  C.  J.  ;  Pitcher  v.  King,  1  C.  &  K.  (47  E.  C.  L.  R.)  655. 


438  JUDICIAL     DOCUMENTS. 

A  writ,  if  not  returned,  is  proved  by  the  mere  production  ;  when 
it  has  been  returned,  it  may  be  proved  by  an  examined  copy.''  The 
judgment-roll  is  incontrovertible  evidence  of  all  the  proceedings 
which  it  sets  forth,  therefore  it  is  evidence  of  the  issuing  an  elegit,  and 
of  the  return  to  the  writ,  in  an  action  for  use  and  occupation,  by  the 
plaintiff  claiming  under  an  elegit/  When  the  writ  is  mere  matter 
of  inducement,  it  may  be  proved  by  the  production  of  the  writ 
itself, "^  without  a  copy  of  the  record  ;  for  possibly  it  may  not  have  been 
returned,  and  then  it  is  no  record ;  but  where  a  record  is  the  gist  of 
the  action  a  copy  from  the  record  is  necessary,  because  that  is  the 
best  evidence.  To  prove  an  allegation,  that  the  defendant  issued  a 
writ  against  A.  B.,  it  is  not  sufficient  for  the  plaintiff  to  show  the 
entry  of  a  prcecipe  in  the  filazer's  book,  and  after  proving  notice  to 
the  defendant  to  produce  it,  to  give  in  evidence  a  copy ;  it  should 
be  shown  that  search  was  made  for  it  in  the  treasury,  and  that  after 
the  return  of  the  writ  it  was  in  the  hands  of  the  defendant.*  The 
r^  ,on-i  ^rit  of  summons,  however,  given  by  2  &  3  Will.  IV.,  *c.  39, 
has  no  return  day,  although  it  is  for  some  purposes  consi- 
dered as  returnable  on  the  day  when  it  was  issued. 

A  bill  in  equity  is  always  evidence  for  the  purpose  of  proving  as 
a  fact  that  such  a  bill  has  been  filed.  But  a  bill  in  equity  is  not 
admissible  in  any  case,  even  against  the  plaintiff  himself,  or  those 
who  claim  through  him,  as  to  any  facts  alleged  in  the  bill,  even 
although  they  relate  to  matters  of  pedigree.*'     In  the  case  of  the 

^  Supra,  p.  265.  y  Ramsbottam  v.  Bucklmrst,  2  M,  &  S.  567. 

^  B.  N.  P.  234  ;  Gilb.  Law  of  Ev.  34. 

"  Edmonstone  v.  Plaisied,  4  Esp.  C.  160.  The  sheriff's  book  is  not  evidence 
of  the  contents  of  a  writ:  Russell  v.  Dickson,  6  Bing.  (19  E.  C.  L.  R.)  442.  In 
order  to  connect  the  mayor  of  a  corporation,  under  5  &  6  Will.  IV.  c.  76,  with 
the  issuing  of  a  warrant  under  which  the  defendant's  goods  had  been  unlaw- 
fully seized,  the  high  constable  who  executed  it  was  called  under  a  siibpcena 
duces  tecum.  lie  said  that  he  had  deposited  the  warrant  in  his  office,  and  had 
searched  for  it  but  could  not  find  it ;  that  he  did  not  know  what  had  become  of 
it ;  and  that  the  town  clerk  had  access  to  his  office.  It  was  held  that  secondary 
evidence  might  be  given  of  the  contents,  without  calling  the  town  clerk  or 
serving  the  defendant  (the  mayor)  with  notice  to  produce  it:  Fernlei/  v.  Wurth- 
ington,  1  M.  &  G.  (39  E.  C.  L.  R.)  491. 

"  Boileau  v.  Rutlin,  2  Ex.  665  ;  Doe  v.  Si/horn,  7  T.  R.  3  ;  and  see  Davies  v. 
Lowndes,  6  M.  &  G.  (46  E.  C.  L.  R.)  471  ;  Pennell  v.  Met/er,  2  M.  &  Rob.  98  ; 
Taylor  v.  Cole,  7  T.  R.  3,  n.,  where  Lord  Kenyon,  at  the  sittings  after  Hil. 
Term  1799,  is  stated  to  have  held,  that  a  bill  in  Chancery,  filed  by  an  ancestor, 
was  evidence  to  prove  a  family  pedigree,  in  the  same  manner  as  an  inscription 
on  a  tombstone,  or  in  a  Bible ;  but  see  Com.  Dig.,  Ev.  C.  2  ;  Devon  v.  Jones,  2 
Anst.  505.     It  was  formerly  held,  that  a  bill  in  equity  was  admissible  evidence 


WRITS — now    PROVED.  439 

Banbury  Peerage,  all  the  judges  held  that,  generally  speaking,  a  bill 
in  Chancery  cannot  be  received  as  evidence  in  a  court  of  law  to 
prove  any  fact,  either  alleged  or  denied  in  such  bill,  although  it 
relate  to  matter  of  pedigree,  and  be  of  considerable  antiquity, 
whether  the  object  of  the  bill  be  to  perpetuate  testimony  or  to 
obtain  relief." 

against  the  plaintiff  in  equity  where  his  privity  could  be  proved,  althoui^h  the 
bill  had  not  been  acted  on,  and  without  proof  of  privity  if  the  bill  has  been 
acted  on:  Ch.  C.  6-1,  05  :  ^now  v.  Phillips,  1  Sid.  221  ;  Eq.  Ca.  Ab.  227,  pi.  1 ; 
B.  N.  P.  235;  Fitzg.  190  ;  Doe  v.  Si/burn,  7  T.  R.  3.  But  it  is  now  finally 
settled  that  the  statements  in  the  bill  are  to  be  re<;arded  as  the  mere  suggestions 
of  the  pleader :  Boileau  v.  Eutlin,  supra. 

<=  In  The  Banbury  Peerage  case,  23d  Feb.  1809  (cited  2  Sel.  N.  P.  712),  the 
counsel  for  the  petitioner  stated  that  he  would  offer  in  evidence  certain  depo- 
sitions taken  upon  a  bill  (seeking  relief),  filed  in  the  Court  of  Chancery  on  the 
9th  February  1040,  by  Edward,  the  eldest  son  of  the  first  Earl  of  lianbury,  an 
infant,  by  his  next  friend.  This  evidence  having  been  objected  to,  and  the 
point  argued,  the  following  questions  were  proposed  to  the  Judges  : — 

Upon  the  trial  of  an  ejectment  brought  by  E.  F.,  against  G.  H.  to  recover  the 
possession  of  an  estate,  E.  F.,  to  prove  that  0.  D.,  from  whom  E.  F.  was  de- 
scended, was  the  legitimate  son  of  ^.  B.,  offered  in  evidence  a  bill  in  Chancery, 
purporting  to  have  been  filed  by  C.  D-  150  years  before  that  time,  by  his  next 
friend,  such  next  friend  therein  styling  himself  the  uncle  of  the  infant,  for  the 
purpose  of  perpetuating  testimony  of  the  fact  that  C.  D.  was  the  legitimate  son 
of  A.  B.,  and  which  bill  stated  him  to  be  such  legitimate  son  (but  no  pei'sons 
claiming  to  be  heirs  at  law  of  A.  B.,  if  C.  D.  was  illegitimate,  were  parties  to 
the  suit,  the  only  defendant  being  a  person  alleged  to  have  held  lands  under  a 
lease  from  A.  B.,  reserving  rent  to  A.  B.  and  his  heirs)  ;  and  also  offered  in 
evidence  depositions  taken  in  the  said  cause,  some  of  them  purporting  to  be 
made  by  persons  styling  themselves  relations  of  A.  B.,  others  styling  them- 
selves servants  in  his  famil}^,  others  styling  themselves  to  be  medical  persons 
attendant  upon  the  family  :  and  in  their  respective  depositions  stating  facts, 
and  declaring  that  C.  D.  was  the  legitimate  son  of  A.  B.,  and  that  he  was  in 
the  family,  of  which  they  were  respectively  relations,  servants,  and  medical 
attendants,  or  reputed  so  to  be. 

First  question  :  Ai-e  the  bill  in  equity,  and  the  depositions  respectively,  or 
any,  and  which  of  them,  to  be  received  in  the  Courts  below  upon  the  trial  of 
such  ejectment  {G.  U.  not  claiming,  or  deriving  in  any  manner,  under  either 
the  plaintiff  or  defendant  in  the  said  Chancery  suits),  either  as  evidence  of  facts 
therein  (alleged,  denied,  or)  deposed  to,  or  as  declarations  respecting  pedigree  ; 
and  are  they,  or  any,  and  which  of  them,  evidence  to  be  received  in  the  said 
cause,  that  the  parties  filing  the  bill  and  making  the  depositions  respectively 
sustained  the  characters  of  uncle,  relations,  servants,  and  medical  persons, 
which  they  describe  themselves  therein  sustaining? 

Answer:  Neither  the  bill  in  equity,  nor  the  depositions,  are  to  be  received  in 
evidence  in  the  Courts  below,  on  the  trial  of  the  ejectment,  either  as  evidence  of 
the  facts  therein  (alleged,  denied,  or)  deposed  to,  or  as  declarations  respecting 


440  JUDICIAL    DOCUMENTS. 

r*440*44Tl  *An  answer  in  Cliancery  is  evidence  as  an  admis- 
sion upon  *oatli/  but  it  is  not  evidence,  except  against 
the  party  who  made  it,  or  to  contradict  his  testimony  in  another 
cause ;"  for,  with  respect  to  others,  it  is  res  inter  aliosJ  If  a  man 
r*J.4-71  ^'^^^^  answer  in  Chancery  which  is  prejudicial  to  his  es- 
tate,  it  is  not  evidence  against  his  alienee '/  *unless,  indeed, 

pedigree  ;  neither  are  any  of  them  evidence  that  the  parties  filinj!;  the  bill,  or 
making  the  depositions  respectively  sustained  the  characters  of  uncle,  relations, 
servants,  and  medical  persons,  which  they  describe  themselves  therein  sustain- 
ing. The  judges  further  added  that  it  would  not  make  any  diiference,  in  their 
opinion,  if  the  bill,  stated  to  have  been  filed  by  C.  D.,  by  his  next  friend  had 
been  a  bill  seeking  relief. 

Second  question  :  Whether  any  bill  in  Chancery  can  ever  be  received  as  evi- 
dence in  a  Court  of  law,  to  prove  any  facts  either  alleged  or  denied  in  such 
bill? 

Answer:  Generally  speaking,  a  bill  in  Chancery  cannot  be  received  as  evi- 
dence in  a  Court  of  law,  to  prove  any  fact,  either  alleged  or  denied  in  such  bill. 
But  whether  any  possible  case  might  be  put,  which  would  form  an  exception 
to  such  general  rule,  the  judges  could  not  undertake  to  say. 

Third  question  :  Whether  depositions  taken  in  the  Court  of  Chancery  in  con- 
sequence of  a  bill  to  perpetuate  the  testimony  of  witnesses,  or  otherwise,  would 
be  received  in  evidence  to  prove  the  facts  sworn  to  in  the  same  way  and  to  the 
same  extent  as  if  the  same  were  sworn  to  at  the  trial  of  an  ejectment  by  wit- 
nesses then  produced  ? 

Answer  :  Such  depositions  would  not  be  received  in  evidence  in  a  Court  of 
law,  in  any  cause  in  which  the  parties  were  not  the  same  as  in  the  cause  in  the 
Court  of  Chancery  ;  or  did  not  claim  under  some  or  one  of  such  parties.  From 
2  Sel.  N.  P.  712. 

^  Gilb.  Law  of  Ev.  106  ;  Godb.  326.  But  although  it  is"  evidence  against  the 
party  making  the  admission,  and  those  who  claim  under  him,  it  is  not  evidence 
as  an  admission  of  the  truth  of  what  he  states  that  he  heard  another  person  say 
injurious  to  his  title:  Lord  Trimlestown  v.  Kemmis,  9  CI.  &  F.  780.  Nor  is  a 
declaration  of  pedigree  made  in  answer  in  Chancery  to  support  a  claim  of  right 
put  forward  by  the  party  who  made  it.  Nor,  semhle,  if  the  answer  is  an  answer 
which  has  not  been  filed:  Wharton  Peerage,  12  CI.  &  F.  295.  An  answer  in 
Chancery  of  the  defendant,  in  a  suit  instituted  against  him  by  the  prosecutor,  is 
evidence  against  him  on  an  indictment  for  a  conspiracy  :  i?.  v.  Goldshede,  1  C. 
&  K.  (47  E.  C.  L.  R.)  657. 

*  Eiver  v.  Ambrose,  6  D.  &  R.  (16  E.  C.  L.  R.)  127.  An  examined  copy  of  the 
evidence  is  in  such  case  sufiicient:  Ibid.;  Countess  of  Dartmouth  v.  liobcrts,  16 
East  334. 

'  GoodrU/ht  v.  Moss,  Cowp.  591. 

8  Salk.  2S6  ;  B.  N.  P.  238  ;  although  it  be  made  before  alienation  :  Ford  v. 
Lord  Grey,  6  Mod.  44  ;  but  sec  Countess  of  Dartmouth  v.  Roberts,  16  East  334, 
infra,  p.  443.  An  answer  in  Chancery  relating  to  an  advowson,  filed  by  a  per- 
son formerly  seised  of  it,  and  through  whom  the  party  against  whom  it  was 
sought  to  be  used  claimed,  but  made  twenty  years  after  the  former  had  con- 


ANSWER     IN    CHANCERY.  442 

the  plaintiff  make  it  evidence  by  producing  it  first.''  As  ■vvlierc  in  an 
issue  out  of  Chancery  to  try  the  terms  of  an  agreement,  wliieh  was 
proved  by  one  witness,  but  denied  by  tbe  defendant,  the  witness  be- 
ing dead  before  the  trial,  the  plaintiff  was  under  the  necessity  of 
producing  the  bill  and  answer  in  order  to  read  his  deposition,  and  by 
that  means  made  the  whole  answer  evidence,  and  it  was  read  for  the 
defendant.'  So  the  answer  of  an  infant  by  guardian  cannot  be  read 
against  him  on  a  trial  at  law,-"  for  the  law  out  of  tenderness  to  infants 
will  not  permit  them  to  be  prejudiced  by  the  oath  of  a  guardian;'' 
but  it  seems  that  the  answer  of  the  guardian  for  the  infant  may 
afterwards  be  used  as  evidence  against  himself,  for  it  is  the  answer 
of  the  guardian  and  not  of  the  infant.'  The  same  objection  does 
not  seem  to  apply  to  an  answer  made  by  a  woman  during  coverture, 
if  offered  in  evidence  after  the  death  of  the  husband.  In  the  case 
of  Wrottesley  v.  Bendish,"^  the  Lord  Chancellor  said  that  he  would 
give  no  opinion  on  the  point,  whether  such  an  answer  Avould  be  evi- 
dence or  not."     But  in   the  case  of  Ilodson   v.    Merest,"  it  was  held 

that  the  joint  answer  of  *tlie  husband  and  wife  could  not  be 

.  .  .      .  r*4431 

read   against  the   wife.     The  ground  of  objection  to  admit-    ^         ^ 

ting  such  an  answer  seems  to  be,  that  the  wife  was  at  the  time  under 

the  dominion  of  the  husband,  and  not  a  free  agent ;  but  if  the  answer 

veyed  away  his  interest,  was  held  inadmissible :  Gully  v.  Bisho])  of  Exeter,  5 
Bing.  (15  E.  C.  L.  R.)  171 ;  and  2  M.  &  P.  (17  E.  C.  L.  R.)  266  ;  see  Dead;/  v. 
Harrison,  1  Stark.  C.  (2  E.  C.  L.  R.)  60.  The  distinction  seems  to  be  between 
mere  collateral  representations  and  those  which  possess  a  legal  eifect  and  oper- 
ate in  law,  or  are  acts  accompanying  the  possession,  for  such,  as  in  the  case  of 
tenants,  &c.,  seem  to  be  always  admissible. 

"B.  N.  P.238. 

'  Bourne  v.  Sir  T.   (Vhitmore,  Salop  1747. 

J  2  Vent.  72  ;  3  Mod.  259  ;  Eccleston  v.  Petty,  Carth.  79.  As  to  an  admission 
by  guardian,  see  Cowling  v.  Ely,  2  Stark.  C.  (3  E.  C.  L.  R.)  366  ;  and  7  M.  & 
W.  408  ;  13  M.  &  W.  646  ;  but  see  Str.  548.  But  the  answer  of  a  minor  by  his 
mother  and  guardian,  may  be  read  against  the  mother  in  a  cause  which  she  de- 
fends in  a  different  capacity  :  Beasley  v.  Magrath,  Sch.  &  Lef.  Rep.  34. 

^  Gilb.  Law  of  Ev.  51  ;  2  Vent.  72  ;  3  Mod.  259  ;  Carth.  79  ;  Salk.  350 ;  Vern. 
60,  109,  110. 

'  3  P.  Wms.  237  ;  Carth.  7,  9  ;  Beasley  v.  Magrath,  supra,  note  {j). 

"  3  P.  Wms.  235. 

°  It  was  objected,  that  an  answer  by  the  wife,  whilst  under  the  power  of  the 
husband,  would  be  of  no  more  use  than  the  answer  of  an  infant. 

"  9  Pri.  566 ;  see  Elston  v.  Wood,  2  Myl.  &  K.  678  ;  Barron  v.  Grillard,  3 
Ves.  &  Bea.  166.  In  Callow  v.  Hawle,  17  L.  J.,  Ch.  71,  Knight  Bruce,  V.  C. 
allowed  a  married  woman's  answer,  put  in  by  her  jointly  with  her  husband,  to 
be  read  against  her  as  to  her  separate  estate. 


440  JUDICIAL     DOCUMENTS. 

r*44.0  *44n  *An  answer  in  Chancery  is  evidence  as  an  admis- 
sion upon  *oatli/  but  it  is  not  evidence,  except  against 
the  party  who  made  it,  or  to  contradict  his  testimony  in  another 
cause  ;®  for,  with  respect  to  others,  it  is  7'es  inter  aliosJ  If  a  man 
V^lioi  ^^^I'^G  answer  in  Chancery  wliich  is  prejudicial  to  his  es- 
tate,  it  is  not  evidence  against  his  alienee  ;^  *unless,  indeed, 

pedigree  ;  neither  are  any  of  them  evidence  that  the  parties  filing;  the  hill,  or 
makinf;;  the  depositions  respectively  sustained  the  characters  of  uncle,  relations, 
servants,  and  medical  persons,  which  they  describe  themselves  therein  sustain- 
ing. The  judges  further  added  that  it  would  not  make  any  difference,  in  their 
opinion,  if  the  bill,  stated  to  have  been  filed  by  C.  D.,  by  his  next  friend  had 
been  a  bill  seeking  relief. 

Second  question  :  "Whether  any  bill  in  Chancery  can  ever  be  received  as  evi- 
dence in  a  Court  of  law,  to  prove  any  facts  either  alleged  or  denied  in  such 
bill? 

Answer:  Generally  speaking,  a  bill  in  Chancery  cannot  be  received  as  evi- 
dence in  a  Court  of  law,  to  prove  any  fact,  either  alleged  or  denied  in  such  bill. 
But  whether  any  possible  case  might  be  put.  which  would  form  an  exception 
to  such  general  rule,  the  judges  could  not  undertake  to  say. 

Third  question  :  Whether  depositions  taken  in  the  Court  of  Chancery  in  con- 
sequence of  a  bill  to  perpetuate  the  testimony  of  witnesses,  or  otherwise,  would 
be  received  in  evidence  to  prove  the  facts  sworn  to  in  the  same  way  and  to  the 
same  extent  as  if  the  same  were  sworn  to  at  the  trial  of  an  ejectment  by  wit- 
nesses then  produced  ? 

Answer :  Such  depositions  would  not  be  received  in  evidence  in  a  Court  of 
law,  in  any  cause  in  which  the  parties  were  not  the  same  as  in  the  cause  in  the 
Court  of  Chancery  ;  or  did  not  claim  under  some  or  one  of  such  parties.  From 
2  Sel.  N.  P.  712. 

*  Gilb.  Law  of  Ev.  106  ;  Godb.  326.  But  although  it  is- evidence  against  the 
party  making  the  admission,  and  those  who  claim  under  him,  it  is  not  evidence 
as  an  admission  of  the  truth  of  what  he  states  that  he  heard  another  person  say 
injurious  to  his  title:  Loi-d  Trimlestown  v.  Kemmis,  9  CI.  &  F.  780.  Nor  is  a 
declaration  of  pedigree  made  in  answer  in  Chancery  to  support  a  claim  of  right 
put  forward  by  the  party  who  made  it.  Nor,  semble,  if  the  answer  is  an  answer 
which  has  not  been  filed :  Wharton  Peerage,  12  CI.  &  F.  295.  An  answer  in 
Chancery  of  the  defendant,  in  a  suit  instituted  against  him  by  the  prosecutor,  is 
evidence  against  him  on  an  indictment  for  a  conspiracy  :  R.  v.  Goldshede,  1  C. 
&  K.  (47  e1  C.  L.  R.)  657. 

*  Ewer  V.  Ambrose,  6  D.  &  R.  (16  E.  C.  L.  R.)  127.  An  examined  copy  of  the 
evidence  is  in  such  case  sufficient:  Ibid. ;  Countess  of  Dartmouth  v.  Roberts,  16 
East  334. 

'  Goodrujht  v.  Moss,  Cowp.  591. 

8  Salk.  2<S6  ;  B.  N.  P.  238  ;  although  it  be  made  before  alienation:  Ford  v. 
Lord  Orel/,  G  Mod.  44  ;  but  see  Countess  of  Dartmouth  v.  Roberts,  16  East  334, 
infra,  p.  443.  An  answer  in  Chancery  relating  to  an  advowson,  filed  by  a  per- 
son formerly  seised  of  it,  and  through  whom  the  party  against  whom  it  was 
sought  to  be  used  claimed,  but  made  twenty  years  after  the  former  had  con- 


ANSWER     IN    CHANCERY.  442 

the  plaintiff  make  it  evidence  by  producing  it  first.''  As  ■where  in  an 
issue  out  of  Chancery  to  try  the  terms  of  an  agreement,  which  was 
proved  by  one  witness,  but  denied  by  the  defendant,  the  witiicss  be- 
ing dead  before  the  trial,  the  plaintiff  was  under  the  necessity  of 
producing  the  bill  and  answer  in  order  to  read  his  deposition,  and  by 
that  means  made  the  whole  answer  evidence,  and  it  was  read  for  the 
defendant.'  So  the  answer  of  an  infant  by  guardian  cannot  be  read 
against  him  on  a  trial  at  law,'  for  the  law  out  of  tenderness  to  infants 
will  not  permit  them  to  be  prejudiced  by  the  oath  of  a  guardian;'' 
but  it  seems  that  the  answer  of  the  guardian  for  the  infant  may 
afterwards  be  used  as  evidence  against  himself,  for  it  is  the  answer 
of  the  guardian  and  not  of  the  infant.'  The  same  objection  does 
not  seem  to  apply  to  an  answer  made  by  a  woman  during  coverture, 
if  offered  in  evidence  after  the  death  of  the  husband.  In  the  case 
of  Wrottesleij  v.  Bendish,"'  the  Lord  Chancellor  said  that  he  would 
give  no  opinion  on  the  point,  wdiether  such  an  answer  w^ould  be  evi- 
dence or  not."     But  in   the  case  of  Ilodson   v.    Meresi,°  it  was  held 

that  the  joint  answer  of  *the  husband  and  wife  could  not  be 

.  .  .      .  r*4431 

read   against  the   wife.     The  ground  of  objection  to  admit-    ^         J 

ting  such  an  answer  seems  to  be,  that  the  wife  Avas  at  the  time  under 

the  dominion  of  the  husband,  and  not  a  free  agent ;  but  if  the  answer 

veyed  away  his  interest,  was  held  inadmissible  :  Gully  v.  Bishojy  of  Exeter,  5 
Bing.  (15  E.  C.  L.  R.)  171 ;  and  2  M.  &  P.  (17  E.  C.  L.  R.)  266  ;  see  Deadi/  v. 
HariHson,  1  Stark.  C.  (2  E.  C.  L.  R.)  60.  The  distinction  seems  to  be  between 
mere  collateral  representations  and  those  which  possess  a  legal  effect  and  oper- 
ate in  law,  or  are  acts  accompanying  the  possession,  for  such,  as  in  the  case  of 
tenants,  &c.,  seem  to  be  always  admissible. 

^  B.  N.  P.  238. 

'  L'ounie  v.  Sir  T.  (Vhitmore,  Salop  1747. 

J  2  A^ent.  72  ;  3  Mod.  259  ;  Eccleston  v.  Petty,  Carth.  79.  As  to  an  admission 
hj  guardian,  see  Cowllny  v.  Ely,  2  Stark.  C.  (3  E.  C.  L.  R.)  366  ;  and  7  M.  & 
W.  408  ;  13  M.  &  W.  646  ;  but  see  Str.  548.  But  the  answer  of  a  minor  by  his 
mother  and  guardian,  may  be  read  against  the  mother  in  a  cause  which  she  de- 
fends in  a  different  capacity  :  Beasley  v.  Magrath,  Sch.  &  Lef.  Rep.  34. 

^  Gilb.  Law  of  Ev.  51  ;  2  Vent.  72  ;  3  Mod.  259  ;  Carth.  79  ;  Salk.  350 ;  Yern. 
60,  109,  110. 

'  3  P.  Wms.  237  ;  Carth.  7,  9  ;  Beasley  v.  Magrath,  supra,  note  {j). 

■"  3  P.  Wms.  235. 

°  It  was  objected,  that  an  answer  by  the  wife,  whilst  under  the  power  of  the 
husband,  would  be  of  no  more  use  than  the  answer  of  an  infant. 

°  9  Pri.  566 ;  see  Elston  v.  Wood,  2  Myl.  &  K.  678  ;  Barron  v.  Grillard,  3 
Ves.  &  Bea.  166.  In  Callow  v.  Hawle,  17  L.  J.,  Ch.  71,  Knight  Bruce,  V.  C. 
allowed  a  married  woman's  answer,  put  in  by  her  jointly  with  her  husband,  to 
be  read  against  her  as  to  her  separate  estate. 


413  JUDICIAL     DOCUMENTS. 

was  adverse  to  the  interest  of  the  liusband,  a  presumption  of  duress 
cannot  arise.  An  answer  by  one  defendant  is  not  evidence  against 
another,  for  no  one  is  bound  by  the  acts  or  declarations  of  another 
without  his  privity. ^  But  an  answer  by  one  partner  is  evidence 
against  another  as  to  partnership  liabilities,  since  there  is  a  privity 
and  community  of  interest,  and  each,  for  such  purposes,  is  the  agent 
of  the  other;  since,  however,  this  depends  on  the  privity  of  interest, 
the  partnership  must  be  proved  aliunde.'^  So  the  answer  of  a  party 
is  evidence  against  one  who  claims  under  him.  Thus,  in  an  action  for 
not  setting  out  tithe,  copies  of  a  bill  and  answer,  in  a  suit  by  the  vicar 
for  the  tithe  of  hay  against  S.  L.,  then  owner  and  occupier  of  the 
close,  and  from  Avhom  the  defendant  purchased,  denying  the  vicar's 
right,  and  setting  up  a  right  in  the  ancestor  of  the  plaintiff,  were  held 
to  be  evidence  against  the  defendant."^ 

P  Vide  tit.  Admissions;  Wijch  v.  Meal,  3  P.  Wms.  31]  ;  12  Ves,  361.  Upon  a 
question  of  the  v\^\t  of  a  lord  of  a  manor  to  wreck,  held  that  the  answers  of 
persons,  some  tenants  of  the  manor,  to  a  commission  issued  by  a  former  lord, 
stating  the  title  of  the  lord,  were  inadmissible,  the  right  being  of  a  private  na- 
ture, and  the  parties  making  the  declaration  possessing  no  peculiar  means  of 
knowledge :  Talbot  v.  Lewis,  1  Cr.,  M.  &  R.  495  ;  6  C.  &  P.  (25  E.  C.  L.  R.)  605. 

1  Vide  tit.  Admissions — Partners;  Wood  v.  Braddick,  1  Taunt.  104;  Lucas 
V.  De  la  Cou7\  1  M.  &  S.  250 ;  Grant  v.  Jackson,  1  Peake,  C.  203  ;  Pritchard  v. 
Draper,  1  R.  &  Myl.  191. 

^  Conntess  o^f  Dartmouth  v.  Roberts,  16  East  334;  although  the  vicar  aban- 
doned the  suit,  and  no  decree  was  made,  Lord  Ellenborough  observed :  "  This 
appears  to  me  not  to  be  res  inter  alios,  but  inter  cosdem  acta,  and  was  not  only 
evidence,  but  strong  evidence  against  the  defendant,  who  stood  in  the  same 
place  by  derivation  of  the  title  and  legal  obligation  as  the  former  occupier  of 
the  same  land  ;  and  that  former  owner,  on  his  oath,  in  a  suit  against  him  by 
the  vicar,  has  declared  that  the  tithe  is  due  to  the  rector  and  not  to  the  vicar; 
and  now  that  same  person  in  effect  (that  is,  the  present  owner,  who  purchased 
of  the  former  owner  the  very  lands  over  which  tithes  are  now  claimed)  is 
decrying  the  title  of  the  rector  in  favor  of  the  vicar."  See  also  Benson  v. 
Olive,  2  Gwill.  701;  Earl  of  Sussex  v.  Temple,  1  Ld.  Raym.  310;  Travis  \. 
Challoner,  3  Gwill.  1237;  Ashbrj  v.  Power,  Ibid.  1259;  Bishop  of  Meath  v. 
Winchester,  3  Ring.  N.  C.  (32  E.  C.  L.  R.)  183  ;  Crease  v.  Barrett,  1  Cr.,  M.  & 
R.  932. 

'  The  answer  of  one  defendant  is  not  in  general  evidence  against  his  co- 
defendant:  Field  et  al.  v.  Holland  et  al.,  6  Cranch  8  ;  Grant  v.  Bisset,  1  Caine 
112;  Clark'' s  Ex'ors.  v.  Van  Itiemsdyk,  9  Cranch  153  ;  Leeds  v.  Marine  Ins.  Co. 
(f  Alexandria,  2  Wheat.  380;  Uoomes  v.  Smock,  1  Wash.  389;  Phoenix  v.  As- 
sii/uees  of  Li(/rahani,  5  Johns.  412.  But  this  rule  does  not  apply  to  a  case  when 
the  other  defendants  claim  through  him  or  when  they  are  all  proved  to  be 
partners  in  th(!  same  transaction  :  Field  el  al.  v.  Holland  et  al. ;  Clark's  Ex^ors. 
v.  Van  Jieimsdijk,  ubi  sup. ;    Van  Reimsdyk  v.  Kane  et  al.,  1  Gall.  035  ;  see  also 


ANSWER     IN    CHANCERY.  444 

*It  is  a  jreneral  rule,  that  tlie  party  avIio  reads  an  answer    ^    , 

.        .  .    .  r*4441 

makes  the  whole  of  it   evidence  ;'  for  it  is  read  as  the  sense    •-         -• 

of  the  party  himself,  which  must  be  taken  entire  and  unbroken.^ 
Hence,  if  upon  exceptions  taken,  a  second  answer  has  been  put  in, 
the  defendant  may  insist  upon  having  that  read  to  explain  what  he 
swore  in  his  first  answer.'  But  where  the  evidence  of  a  witness  was 
read  merely  in  order  to  show  tliat  he  was  incompetent,  the  whole  was 
not  evidence,  but  only  so  much  as  showed  that  he  was  incompetent." 
And  where  depositions  in  a  suit  in  equity  are  given  in  evidence  at 
law,  and  the  bill  and  answer  are  put  in  to  show  that  the  depositions 
are  admissible,  the  opposite  counsel  cannot  refer  to  the  bill  and 
answer  in  his  address  to  the  jury."  For  the  judge  only  refers  to 
them  for  the  purpose  of  determining  whether  the  depositions  are  evi- 
dence by  seeing  what  was  in  issue  in  the  suit."     xVlthough  the  whole 

of  an    answer  must   in   general  be  read,  the   *rule   decides    ^    .  .   ^ 
...  .       .  .         r*44ol 

nothing  as  to  the  credibility  of  any  fact  which  it  contains,    •-          -" 

and  this  must  depend  upon  circumstances.  Where  the  answer 
charges  the  defendant  by  the  admission  of  one  fact,  and  also  dis- 
charges him  by  the  statement  of  a  distinct  and  further  fact,  the  rule 

'  Barne  v.  Whifmore,  Bac.  Abr.,  Ev.  F. ;  Earl  of  Bath  v.  Battersea,  5  Mod. 
9  ;  Lynch  v.  Gierke,  3  Salk.  1.53  ;  see  Bermon  v.  Woodbridije,  Doug.  781,  stqjra ; 
and  Partington  v.  Butcher,  6  Esp.  C.  6G ;  and  tit.  Limitations  :  Earl  of  Mon- 
tague V.  Lord  Preston,  2  Vent.  170;  Baiidle  v.  Blackburn,  5  Taunt.  (1  E.  C.  L. 
R.)  245;  Pennell  v.  Meyer,  2  M.  &  Rob.  99.  Where  the  pUiintiff  in  equity  reads 
a  passage  in  the  answer  as  evidence  of  a  particuhir  fact,  the  defendant  cannot 
read  subsequent  matter,  although  connected  by  conjunctive  particles,  unless  it 
be  explanatory  of  the  passage  read  by  the  plaintiff:  Davis  v.  Spurling,  1  Russ. 
&M.  68;  see  also  B.  N.  P.  2.38;  2  Vent.  194;  1  Ch.  Ca.  194;  Gil'b.  Law  of 
Ev.  44. 

*B.  N.  P.  237  ;  R.  v.  Carr,  1  Sid.  418. 

"  Sparing  v.  Drax,  27,  c.  2,  C.  B. ;  Trial  at  Bar,  Bac.  Abr.,  Ev.  F.  A  suf- 
ficient reason  for  this  seems  to  be  that  it  is  not  evidence  in  the  cause,  but  for 
the  court  only. 

"  Chappel  V.  Purday,  14  M.  &  W.  303. 

^  Ibid. 

Bartlett  v.  Marshall,  2  Bibb  470.  Whenever  the  confession  of  any  party  would 
be  good  evidence  against  another,  in  such  case  his  answer  d  fortiori  may  be 
read  against  the  latter:  per  Story,  J.,  1  Gall.  ii6i  sup.;  Kiddie  \.  Dcbrutz,  1 
Ilayw.  421,  s.  p.  M. 

'  Where  an  answer  in  chancery  is  given  in  evidence  in  a  court  of  law,  the 
party  is  entitled  to  have  the  whole  of  his  answer  read  ;  and  it  is  to  be  received 
as  prima  facie  evidence  of  the  truth  of  the  facts  stated  in  it — open,  however, 
to  be  rebutted  by  the  opposite  party:  Lawrence  v.  Ocean  Ins.  Co.,  11  Johns. 
269  ;  see  Hoffman  et  al.  v.  Smith,  1  Caines  157.  M. 


445  JUDICIAL     DOCUMENTS. 

has  been  said  to  be,  that  what  is  admitted  need  not  be  proved  by  the 
plaintiff,  but  the  defendant  must  make  out  his  fact  in  discharge '/  and 
therefore  -where  the  executor,  in  an  ansAver  to  a  bill  by  creditors 
for  an  account  of  the  personal  estate,  admitted  the  receipt  of  <£100, 
but  alleged  that  it  had  been  given  to  him  by  the  testator,  for  his 
trouble  in  the  testator's  business,  it  was  held,  that  the  defendant  was 
bound  to  make  out,  by  proof,  that  which  he  insisted  upon  by  way  of 
avoidance ;  since  it  was  probable  that  he  admitted  the  fact  out  of 
apprehension  that  it  might  be  proved,  and  therefore  it  ought  not  so 
far  to  profit  the  party  as  to  give  credit  to  the  statement  in  avoidance. 
But  the  distinction  was  taken,  that  if  the  admission  and  discharge 
had  been  one  entire  fact,  as,  if  tlie  defendant  had  said  that  the  tes- 
tator had  given  him  XlOO,  it  ought  to  have  been  admitted,  unless 
disproved,  because  nothing  of  the  fact  charged  was  admitted.^  In 
courts  of  law,  however,  the  rule  is,  that  if  a  party  read  the  defend- 
ant's answer,  the  effect  is  tu  make  him  a  witness  in  the  cause,  and  to 
submit  the  credibility  of  all  the  facts  stated  to  the  consideration  of 
the  jury  ;'^  *but  it  will  not,  it  seems,  operate  to  make  a  state- 
L  J  mcnt  evidence  which  is  in  itself  inadmissible;  as  where  it 
rests  upon  mere  hearsay  by  the  party  who  made  the  answer.'' 

^In  Equity,  B.  N.  P.  237.  Where  a  party  (in  equity)  reads  a  passage  from 
the  defendant's  answer,  he  reads  all  the  facts  stated  in  that  passage;  if  it  refers 
to  any  other  passage,  or  facts  stated  in  any  other  passage,  that  must  be  read, 
but  only  for  the  purpose  of  explaining  the  former ;  and  if  new  facts  are  stated 
in  the  passage  so  referred  to  which  must  in  grammatical  construction  be  read 
for  the  purpose  of  explanation,  the  facts  and  circumstances  so  introduced  are 
not  to  be  considered  as  read :  Bartlett  v.  G'lUard,  3  Russ.  157. 

^  B.  N.  P.  237  l  per  Cowper,  C,  Hill.  Vac.  1707. 

'  Roe  d.  Pellatt  v.  Ferrars,  2  B.  &  P.  542.  The  admissions  made  must  be  con- 
strued by  the  court;  and  the  whole  admission  must  be  laid  before  the  jury  as  one 
entire  writing ;  but  they  are  not  bound  to  believe  the  whole  of  it,  and  ought  to 
be  allowed  to  contrast  it  with  the  other  evidence  in  the  case  :  Baildon  v.  Walton, 
1  Ex.  017,  decided  in  Cam.  Scac.  on  a  bill  of  exceptions.  So,  in  an  action  of 
trespass  against  two  defendants,  one  of  whom  was  keeper  of  the  king's  prison, 
and  the  other  a  secretary  of  state,  the  plaintiff,  in  proof  of  the  alleged  acts  of 
trespass,  gave  in  evidence  a  return  by  one  defendant  to  a  writ  of  habeas  corpus, 
in  Avhich  that  defendant  stated  that  he  had  committed  the  acts  in  question  in 
obedience  to  certain  orders  made  by  his  co-defendant.  The  defendants  there- 
upon called  in  aid  the  evidence  contained  in  tliat  document  in  support  of  certain 
pleas  of  justification  ;  and  the  court  held  that  the  return  was  evidence  for  the 
defendants  in  support  of  the  pleas,  as  well  as  against  them  in  proof  of  the  tres- 
pass, and  justified  a  verdict  for  them  upon  the  pleas  of  justification  :  Cobhett  v. 
Oven,  4  Ex.  729. 

''  See  Roe  d.  Pe/lail  v.  Ferrars,  2  B.  &  P.  542,  and  the  observations  of  Cham- 
bre,  J.,  2  B.  &  P.  548  ;  and  Parke,  B.,  1  Ex.  020 ;  Gilb.  Law  of  Ev,  44. 


ANSWER    IN    CnANCERY.  446 

A  copy  of  a  letter  written  by  tbe  plaintiff's  agent,  and  referred  to 
in  an  answer  by  tbe  plaintiff  to  a  bill  of  discovery  filed  by  anotber 
party,  in  wbicb  tbe  original  letter  was  not  filed,  but  tbe  copy  in 
question  was  delivered  by  tbe  plaintiff's  solicitor  in  tbe  suit  for  dis- 
covery, may  be  read  in  evidence  witbout  reading  tbe  plaintiff's  an- 
swer." 

'  *An  answer  is  proved  by  producing  tbe  bill  and  answer,*^  r*j^j.7"i 
or  admitted  copies,  or  by  proof  of  examined  copies.*  In  I-  -' 
civil  cases  (it  is  said)  it  will  be  presumed  tbat  the  answer  was  upon 
oath  ;*■  but  since  tbe  answer  in  civil  cases  operates  merely  by  way  of 
admission,  it  is  sufficient  to  prove  it  to  be  the  answer  of  tbe  party, 
and  it  is  not  necessary  in  civil  cases  to  produce  tbe  original  answer, 
and  to  prove  it  to  have  been  signed  by  tbe  defendant.^     If  on  proof 

"  B.^  an  underwriter,  filed  a  bill  of  discovery  against  A.^  an  assured,  and  W., 
his  aiient,  who  had  effected  the  insurance  ;  A.  and  W.  put  in  their  answers,  in 
which  they  referred  to  a  letter  written  by  W.  on  the  subject  of  the  insurance. 
The  original  was  not  produced,  but  to  save  time  and  expense  it  was  agreed  that 
a  copy  should  be  inspected,  which  was  done,  and  a  copy  taken  by  the  under- 
writer. On  an  action  brought  by  A.  against  another  underwriter,  it  was  held 
that  the  latter  was  entitled  to  read  the  copy  in  evidence  without  reading  ^.'s 
answer.  For  whether  it  be  or  be  not  necessary  to  read  an  answer  in  Chancery 
for  the  purpose  of  making  documents  evidence  which  may  be  annexed  to  it,  the 
rule  would  not  apply  to  the  case  in  question,  for  the  letter  was  not  before  the 
Court  of  Chancery.  And  Lord  Tenterden  observed  :  "I  should  at  present  think 
it  a  very  strong  proposition  to  say  that  the  answer  must  at  all  events  be  read, 
though  having  no  connection  with  the  case  in  which  the  documents  are  pro- 
duced ;  but  here,  at  least,  we  think  the  copy  in  question  was  admissible  without 
the  answer:"  Long  v.  Champion^  2  B.  &  Ad.  (22  E.  C.  L.  R.)  284.  In  an  action 
against  the  sheriff  for  a  false  return  of  nulla  bona  to  an  execution  issued  against 
the  goods  of  E.,  the  latter  having  filed  a  bill  in  Chancery,  in  which  suit  an  order 
had  been  made  that  all  letters  written  by  E.  inter  alia,  should  be  brought  into 
court ;  held  that  although  the  defendant  might  give  in  evidence  the  order  as  an 
act  of  court  not  affecting  the  right  of  either  parties,  yet  the  letters  of  E.  were 
inadmissible  without  the  bill  and  answer  ;  it  not  being  proposed  to  put  in  with 
them  any  letter  written  by  the  plaintiff  in  reply,  the  answer  might  explain  or 
wholly  neutralize  the  effect  of  such  letters :  Hewitt  v.  Piggott,  5  C.  &  P.  (24  E. 
C.  L.  R.)  77. 

^  Bac.  Ab.,  Ev.  F.     The  bill  ought  to  be  produced,  because  it  may  be  material 
to  explain  the  answer. 

"  Ewer  v.  Ambrose,  4  B.  &  C.  (10  E.  C.  L.  R.)  25;  Hennell  v.  Lr/on,  1  B.  & 
Aid.  182;  Eees  v.  Bowen,  1  McCl.  &  Y.  383. 

f  Bac.  Abr.,  Ev.  F. ;  B.  N.  P.  238,  239 ;  see   Crooke  v.  Bowling,  3  Doug.  (26 
E.  C.  L.  R.)  77  ;  Jameses  case,  1  Show.  327. 

8  Lady  Dartmotith  v.  Roberts,  16  East  334 ;  Hodgkinson  v.  Willis,  3  Camp. 
401  ;  Ewer  v.  Ambrose,  supra;  Uighjield  v.  Peake,  1  M.  &  M.  (22  E.  C.  L.  R.) 
109,  supra;  Studdy  v.  Sanders,  2  I>.  &  R.  (16  E.  C.  L.  R.)  347 ;  liees  v.  Bowen, 
27 


447  JUDICIAL     DOCUMENTS. 

of  the  copies  the  names  and  characters  of  the  parties  corresponrl, 

that  is  sufficient  primd  facie  proof  of  the  identity  of  the  parties,  and. 

the  burthen  of  repelling  the  presumption  lies  on  the  objecting  party  ;*' 

.-^..r^-,  but  it  is  otherwise  in  a  criminal  proceeding  on  *an  indict- 

r  4481  •  . 

L         -J   ment   for  perjury,   or  an  action    for   malicious   prosecution, 

■which  is  in  the  nature  of  a  criminal  proceeding,* 

But  it  is  sufficient  to  produce  the  examined  copy^'  of  the  answer 
of  the  witness  in  equity,  in  order  to  contradict  his  testimony,  for  it 
cannot  be  regarded  as  a  criminal  proceeding.  On  proof  of  search 
for  the  bill  by  the  officer  in  the  proper  office,  and  that  it  cannot  be 
found,  the  answer  has  been  allowed  in  evidence  without  proof  of  the 
bill.'^ 

A  man's  voluntary  affidavit  is  admissible  against  himself,  and  if 
offered  as  an   affidavit  must   be  proved   to   have  been    sworn  ;*  but 

1  McCl.  &  Y.  383.  In  the  case  of  Dartnall  v.  Ilcnvard,  R.  &  M.  (21  E.  C.  L.  R.) 
169,  it  was  held,  that  for  the  purpose  of  identifying  the  original  answer,  of  which 
an  examined  copy  was  produced,  as  the  answer  of  the  defendant,  a  witness  who 
had  seen  the  original  was  allowed  to  prove  that  it  was  in  the  handwriting  of 
the  defendant,  though  it  was  not  produced.  Although  the  bill  be  lost,  the  an- 
swer will  still  be  evidence,  as  an  admission  under  the  defendant's  hand:  1  Ford's 
MSS.  145. 

^  Hennell  v.  Lij07i,  1  B.  &  Aid.  182  ;  see  1  Ld.  Raym.  154 ;  2  Bl.  1190.  Note, 
that  the  defendant  in  Hennell  v.  Lyon  was  Charles  Lyon,  sued  as  the  administra- 
tor of  Mary  Lyon,  and  by  h's  plea  he  had  admitted  himself  to  be  such  administra- 
tor, and  the  copy  of  the  answer  showed  that  the  bill  was  filed  against  Charles 
Lyon,  as  administrator  of  Mary  Lyon.  The  judges  relied  on  the  coincidence  of 
description,  and  Lord  Ellenborough  seems  to  have  considered  it  as  a  matter  of 
public  convenience  to  receive  such  evidence  in  civil  cases  without  further  proof. 
And  see  -Greenshields  v.  Crawford,  9  M.  &  W.  314;  Simpson  v.  Dismore,  9  M. 
&  W.  47;  liiissell  v.  Smyth,  9  M.  &  W.  818;  Smith  v.  Henderson,  9  M.  &  W. 
798  ;  Sewell  v.  Evans,  Roden  v.  Ryde,  4  Q.  B.  (45  E.  C.  L.  R.)  626.  Identity 
may  be  evidenced  where  necessary  by  proof  of  the  party's  handwriting :  see  R. 
v.  Benson,  2  Camp.  508;  R.  v.  Morris,  2  Burr.  1189;  Sayer  v.  Glosso}),  2  Ex. 
409 ;  Dartnall  v.  Howard,  Ry  &  M.  (21  E.  C.  L.  R.)  169 ;  Scott  v.  Lewis,  7  C.  & 
P.  (32  E.  C.  L.  R.)  349 ;  Price's  case,  1  Leach  323  ;  Bendi/s  case,  Ibid.  330;  and 
tit.  Handwriting — Perjury. 

»  16  East  348  ;  R.  v.  Morris,  1  B.  &  A.  182;  7.'.  v.  Benson,  2  Camp.  C.  508  ; 
see  Vol.  n.,  tit.  Perjury.  The  fact  of  swearing  may  be  proved  by  evidence  of 
the  Master's  handwriting  to  the /«/■«<,  without  calling  him:  R.  v.  Benson,  2 
Camp.  508;  R.  v.  Morris,  2  Burr.  1189.  The  jurat  is  evidence  of  the  place 
where  the  oath  was  taken:  R.  v.  Spencer,  Ry.  &  M.  (21  E.  C.  L.  R.)  97;  but 
not  conclusive:  Emdens  case,  9  East  437.  It  was  held  sufficient  evidence  in 
R.  V.  Turner,  2  C.  &  K.  (61  E.  C.  L.  R.)  732,  on  ar\  indictment  for  perjury. 

J  Ewer  V.  Ambrose,  4  B.  &  C.  (10  E.  C.  L.  R.)  25  ;  or  an  admitted  copy  :  Davies 
V.  Davies,  9  C.  &  P.  (38  E.  C.  L.  R.)  252. 

"  Gill).  Law  of  Ev.  49.  '  B.  N.  P.  2.38. 


BILL    AND    ANSWER — HOW     PROVED.  448 

proof  of  the  party's  signature  makes  it  admissible  as  a  note  or  letter, 
■without  further  proof.'"  *Wliere  an  affidavit  has  been  made  p^ .  .q-, 
in  the  course  of  a  cause,  proof  that  such  a  cause  was  pend-  ^  J 
ing  and  that  such  affidavit  was  used  by  the  party,  would  be  sufficient 
evidence  to  prove  the  affidavit  in  a  civil  suit."  A  copy  of  a  volun- 
tary affidavit  is  not  admissible  in  evidence,  for  it  has  no  relation  to  a 
court  of  justice."  In  order  to  prove  an  affidavit  of  the  defendant  in 
the  same  court  in  which  the  action  is  tried,  it  is  sufficient  to  prove  an 
examined  copy,  without  proving  the  handwriting  of  the  party,  or 
that  he  was  sworn.^ 

A  rule  of  court  under  the  hand  of  the  proper  officer,  is  itself  an 
original,  and  may  be  given  in  evidence  in  a  legal  proceeding  in  that 
court  without  being  proved  to  be  a  true  copy.'^  Indeed  the  copy  of 
the  rule  given  out  by  the  Master  is  the  rule.'' 

A  judge's  order  is  proved  by  the  order  itself,  the  court  being 
bound  to  take  judicial  notice  of  the  signature  of  the  judge,^  or  by 
the  rule  of  court  thereon.'  An  order,  however,  of  justices  of  assize 
for  restitution  of  premises  delivered  up  to  the  landlord  by  order  of 
magistrates,  under  11  Geo.  II.,  c.  19,  s.  16,  is  an  order,  not  of  the 
court,  but  of  the  individual  judges,  and  therefore  is  not  proved  by  a 
certificate  signed  by  the  clerk  of  assize,  and  stamped  with  the  stamp 
of  his  office ;  and  it  seems  that  such  orders  should  be  signed  by  the 
judges  themselves." 

Next,    as    to    pleadings    in    an    action    at    law.       Where    there 

*are  several  counts  in  the  same  declaration,  or  several  dis- 

r*4501 
tinct  pleas,  an  allegation  in  one  count  or   plea   cannot   be  '-         -^ 

insisted  upon  by  the  adversary  as  an  admission  of  a  fact  for  a  pur- 
pose distinct  from  the  proof  of  that  count,  or  of  the  issue  upon  the 
plea ;  for  every  issue  is  to  be  distinctly  tried.  Thus,  upon  a  decla- 
ration in   assumpsit,  by  a  landlord  against  a  tenant  for  breach  of 

•"  Ibid. 

°  Ibid.,  and  Show.  2*J7  ;  and  perhaps  in  a  criminal  proceeding. 

°  B.  N.  P.  338.  And  therefore  a  copy  of  an  affidavit  made  by  the  defendant 
in  Chancery,  of  his  being  worth  2500Z.,  was  rejected  by  Lord  Raymond,  when 
offered  for  the  purpose  of  increasing  the  damages  ;  and  the  plaintiff  was  obliged 
to  send  for  the  original :  Chambers  v.  Robinson,  B.  N.  P.  338. 

P  Cameron  v.  LhjUfoot,  2  Bl.  R.  11 9U. 

^  Selby  V.  Harris,  1  Lord  Raym.  745. 

'  Still  V.  Halford,  4  Camp.  17  ;  Berney  v.  Bead,  7  Q.  B.  (53  E.  C.  L.  R.)  79 ; 
per  Wilde,  C.  J.,  Streeter  v.  Bartlett,  7  C.  B.  (62  E.  C.  L.  R.)  564. 

"8  &9  Vict.  c.  113,8.2. 

'  Still  V.  Halford,  4  Camp.  17 ;  Berney  v.  Read,  7  Q.  B.  (53  E.  C.  L.  R.)  79. 

"  The  Queen  v.  Sewell,  8  Q.  B.  (55  E.  C.  L.  R.)  161. 


450  JUDICIAL     DOCUMENTS. 

good  husbandry,  where  there  is  one  count  which  professes  to  be 
founded  on  a  special  written  agreement,  and  a  second  upon  an  im- 
plied contract,  the  defendant  cannot  insist  upon  the  first  count  as  evi- 
dence that  a  written  contract  exists,  so  as  to  impose  upon  the  plaintiff 
the  necessity  of  producing  it ;''  and  besides,  every  different  count 
professes  to  be  founded  upon  a  distinct  ground  of  action.  So  where 
a  declaration  contains  two  counts,  and  the  defendant  pays  money 
into  court  upon  one,  which  the  plaintiff  accepts,  the  defendant  can- 
not read  that  count  and  the  proceedings  thereon  to  the  jury  to  nega- 
tive an  allegation  in  the  other  count.^  So  in  trespass,  a  plea  of 
justification  does  not  supersede  the  necessity  of  proving  the  trespass, 
where  the  general  issue  is  pleaded.^  In  like  manner  where  particu- 
lars of  a  plea  of  set-off  are  given,  the  plaintiff  cannot  give  them 
in  evidence  for  the  purpose  of  showing  that  a  payment  taken  credit 
for  therein  disproves  a  plea  of  the  Statute  of  Limitations ;  for  the 
particulars  are  merely  an  explanation  of  the  plea.*^ 

The  statements  also  of  a  party  in  a  declaration  or  plea  cannot,  it 
seems,  be  treated  as  confessions  of  the  truth  of  the  facts  stated  by 
him.''  In  the  absence  of  an  issue  founded  upon  them,  they  are  not 
evidence  in  another  action,  even  between  the  parties ;  but  in  certain 
r*4'^11  instances  pleadings  *may  be  evidence  against  a  party  of  facts 
alleged  by  his  adversary.  Thus  the  material  facts  alleged 
by  one  party  in  a  pleading,  which  are  directly  admitted  by  the  op- 
posite party,  or  indirectly  admitted  by  taking  a  traverse  on  some 
other  facts,  are  evidence  between  them,"  and  that  conclusive ;  but 
only  if  the  traverse  is   found  against  the  party  making  it.**     Form- 

^  By  Le  Blanc,  J.,  Lancaster  Sp.  Ass.  MSS.  C. ;  Harrington  v.  Macmorris,  5 
Taunt.  (1  E.  C.  L.  R.)  228;  1  Marsh.  (4  E.  C.  L.  R.)  53;  Vol.  III.,  tit.  Par- 
ticulars. 

y  Gould  V.  Oliver,  2  M.  &  G.  (40  E.  C.  L.  R.)  208. 

'  B.  N.  P.  298.  ^  Burkitt  v.  Blanshard,  3  Ex.  89. 

*>  Boileau  v.  Rutlin,  2  Ex.  665. 

"  The  question  whether  omitting  to  traverse  a  material  fact  is  an  admission  of 
that  fact  for  all  purposes  regarding  the  issue  arising  from  that  pleading  in  that 
action,  is  one  of  the  greatest  nicety  ;  thus  it  tias  been  held  that  to  a  plea  to  a 
count  on  a  bill,  that  it  was  obtained  by  fraud,  and  the  plaintiff  took  it  without 
consideration,  a  replication  traversing  the  latter  allegation,  and  omitting  any 
notice  of  the  other,  throws  on  the  plaintiff,  by  way  of  admission  in  the  incep- 
tion of  the  bill  in  fraud,  the  necessity  of  proving  consideration  in  the  first  in- 
stance :  Binnham  v.  Stanley,  2  Q.  B.  (42  E.  C.  L.  R.)  117;  and  per  Alderson, 
B.,  13  M.  &  W.  144  ;  but  see  contra  per  cnr.  Edmunds  v.  Groves,  2  M.  &  W. 
642;  Bennion  v.  Davison,  3  M.  &  W.  179  ;  Smith  v.  Martin,  9  M.  &  W.  304. 

"  3  Ex.  681  ;  Jiobins  v.  Lord  Maidstone,  4  Q.  B,  (45  E.  C.  L.  R.)  811. 


MIXED     DOCUMENTS.  451 

erly  such  an  admission  might  arise  from  passing  by  a  material  state- 
ment without  notice,  and  hence  arose  the  practice  of  making 
protestation.  A  protestation  is  defined  to  be  a  saving  to  the 
party  who  takes  it,  from  being  concluded  bj  any  matter  alleged 
or  objected  against  him  on  the  other  side,  on  which  he  cannot 
take  issue.*  It  is  "an  exclusion  of  a  conclusion"  that  a  party  may 
by  pleading  incur ;  it  is  a  safeguard  to  the  party,  which  keepeth 
him  from  being  concluded  by  the  plea  he  is  to  make,  if  the  issue 
be  found  for  him.^  A  protestation  was  of  no  use  to  the  party  who 
took  it,  unless  either  the  issue  was  found  for  him,^  or  unless  the 
matter  could  not  have  been  pleaded.''  Protestations  are  now  ex- 
cluded by  the  new  rules,  but  a  party  is  to  have  the  same  advantage 
as  if  a  protestation  had  been  made. 

A  demurrer  to  a  count  or  plea  is  only  an  admission  of  the  facts 
which  are  well  pleaded,  therefore  if  it  be  decided  *in  favor  r;}:  1-9-1 
of  the  party  demurring,  it  cannot  now  be  used  as  evidence 
against  him,  and  a  demurrer  to  one  special  plea,  on  which  no  judgment 
has  been  given,  cannot  be  treated  as  an  admission  of  the  facts  stated 
in  it  to  prove  another  plea.'  A  demurrer  to  a  plea  in  equity  is  not 
such  an  admission  of  the  facts  charged,  as  to  be  evidence  of  those 
facts  against  the  party  unsuccessfully  demurring,  in  a  subsequent 
action  between  the  same  parties.'' 

III.  Mixed  Documents. 

Documents  which  are  partly  of  a  public  and  partly  of  a  private 
nature,  are  court  rolls,  corporation  books,  and  perhaps  also  within 
the  same  class  may  be  included  the  books  of  some  joint-stock  com- 
panies. These,  with  respect  to  a  particular  class  of  society,  may  be 
considered  as  public  documents,  because  they  proceed  from  an  au- 
thority which  it  recognizes ;  but  with  respect  to  the  rest  of  the  com- 
munity, they  may  be  nothing  more  than  mere  private  documents 
resulting  from  no  acknowledged  authority. 

Court  rolls  and  customaries  of  manors  are  evidence  between  the 
lord   and  the  tenants,  for   they  are  the   public  rolls  by  which  the  in- 

«  Plowd.  276,  b  ;   Graysbrook  v.  Fox,  Finch  359,  361  ;  2  Wins.  Saund.  103,  a. 
f  Co.  Litt.  124. 

«  Bro.  Prot.  14 ;  Co.  Litt.  124 ;  Plowd.  276,  b. 
"  2  Wms.  Saund.  103,  a. 

^Ingram  v.  Lawsoji,  9  Car.  &  P.  (38  E.  C.  L.  R.)  326;  but  see   Gregory  v. 
Duke  of  Brunswick,  1  Car.  &  K.  (47  E.  C.  L.  R.)  24. 
•^  Tompkins  v.  Ashhy,  Moo.  &  Mai.  (22  E.  C.  L.  R.)  32. 


452  MIXED     DOCUMENTS. 

heritance  of  every  tenant  is  preserved ;  and  thej  are  the  rolls  of  the 
Manor  court,  which  was  formerly  a  court  .of  justice.^  Such  docu- 
j-5j.,;.q-i  ments  handed  "^down  from  remote  times,  and  kept  in  the 
muniments  of  the  manor,  are  not,  as  far  as  regards  the  ten- 
ants of  the  manor,  to  be  regarded  as  res  inter  alios  acta ;  they  are 
documents  to  which  all  are  privy.  Custom  is  of  the  very  essence  of 
a  copyhold  tenure ;  and  as  reputation  is  evidence  to  prove  a  custom,™ 
so  are  those  documents  which  contain  the  solemn  adjudications  or 
opinions  of  the  homagers  or  tenant  themselves,  as  to  customary 
rights,  or  which  have  been  handed  down  from  one  generation  to 
another,  and  reputed  to  contain  a  true  account  of  the  manorial  cus- 
toms." Hence  entries  upon  the  court  rolls  are  evidence  to  prove  the 
mode  of  descent,  although  no  instances  of  persons  having  taken  ac- 
cording to  that  mode  be  proved ;"  so  they  are  to  prove  that  procla- 
mations have  been  madc^  A  customary  of  a  manor,  which  has  been 
handed  down  from  steward  to  steward  with  the  court  rolls,  is  evi- 
dence of  the  mode  of  descent  within  the  manor,  although  not  signed 
by  any  one.'^ 

'  Gilb.  Law  of  Ev.  235;  4  T.  R.  670;  see  tit.  Judgments.  Ancient  present- 
ments are  not  evidence  for  the  lord,  unless  signed  by  a  party  in  privity  of  estate 
with  the  person  against  whom  they  are  produced  :  Benett  v.  Coster,  Burroagh, 
J.,  Wilts  Sum.  Ass.  1817.  Presentments  by  the  homage,  restricting  the  lord's 
right,  in  respect  of  parcel  of  his  demesne  land,  to  turn  so  many  cattle  only  on 
the  waste,  not  acted  on,  have  no  weight  against  an  uniform  contrary  usage: 
Arnndell  v.  Lord  Falmouth,  2  M.  &  S.  440.  Where  the  plaintiff  claimed  a 
right  in  the  soil  of  land  adjoining  his  farm,  it  being  contended  that  he  had  only 
a  commonable  right,  held  that  an  ancient  instrument  in  the  nature  of  a  pre- 
sentment at  the  manor  court  by  the  freeholders,  finding  that  the  then  owner  of 
the  farm,  and  those  claiming  the  right  of  the  soil,  had  no  separate  right,  but 
only  a  right  thereon,  as  the  other  freeholders,  for  commonable  cattle,  was  in- 
admissible in  evidence,  either  as  a  presentment,  the  homage  having  no  right  to 
decide  upon  a  claim  made  by  an  individual  to  the  freehold,  or  as  an  award, 
the  party  not  appearing  to  have  submitted  himself,  or  as  evidence  of  reputa- 
tion, being  ^os^  litem  motam ;  and,  semble,  reputation  could  not  affect  a  question 
of  private  right:  Eichards  v.  Bassett,  10  B.  &  C.  (21  E.  C.  L.  R.)  657. 

«"  VideXo].  II.,  tit.  Custom. 

"  See  Lord  Kenyon's  observations,  JRoe  v.  Parker,  5  T.  R.  26 ;  2  M.  &  S.  92 ; 
and  Chapman  v.  Coidan,  1 3  East  10 ;  Doe  v.  Mason,  3  Wils.  63  ;  Lord  Carnar- 
von V.  Villehois,  13  M.  &  W.  313. 

0  5  T.  R.  26 ;  2  M.  &  S.  92. 

P  Doe  V.  nellier,  3  T.  R.  162. 

1  Denn  v.  Spray,  1  T.  R.  466  ;  see  tit.  Copyhold.  So  to  support  proof  of  a 
custom  for  a  lord  of  a  manor  to  take  only  one  heriot  on  the  death  of  a  tenant, 
whatever  the  numljcr  of  holdings  he  might  have,  a  paper  purporting  to  be  a 
copy  of  an  old  decree  of  the  Court  of  Chancery  in  a  auit  between  a  copyholder 


COURT     ROLLS.  454 

*Court   rolls,    containing    a    presentment   of   admittance    r^c/ir^-i 
upon  surrender  out  of  court,  are  primary  evidence   between 
surrenderor   and   surrenderee    to  prove    the    surrender ;    and   conse- 
quently the  original  surrender  need  not  be  produced." 

The  examined  copy  of  a  court  roll"  is  admissible  in  evidence,  upon 
the  same  principle  as  the  chirograph  of  a  fine  or  enrolment  of  a 
deed.'  So  a  copy  of  a  court  roll  under  the  hand  of  the  steward  is 
good  evidence  to  prove  the  copyholder's  estate."  An  examined  copy 
of  a  particular  entry  in  the  court  rolls  of  a  manor  is  evidence  with- 
out producing  the  original,  even  where  it  may  be  presumed  that  the 
books  themselves  contain  other  entries  connected  with  the  point  in 
issue.''  A  surrender  of  copyhold  lands  *by  deed  out  of  court  r:c4^r  c-, 
is  evidenced  by  the  copy,   although  the  stat.  48   Geo.  III.  -* 

c.  149,  requires  the  deed  and  not  the  copy  to  be  stamped.'''  See 
further  on  this  subject.  Vol.  II.,  tit.  Copyholds. 

and  the  lord,  produced  by  a  witness  who  succeeded  his  brother  as  lord  of  the 
manor,  and  who  stated  he  had  found  it  amongst  his  brother's  papers,  was  held 
to  be  admissible  in  evidence  as  against  a  subsequent  lord,  after  evidence  of  an 
ineffectual  search  for  the  original :  Price  v.  Woodhouse,  3  Ex.  616. 

^  Doedem.  Garrod  v.  Ollqi,  12  A.  &  E.  (40  E.  C.  L.  R.)  481. 

^Doe  d.  Bennington  v.  Hall,  16  East  208;  Esp.  C.  221  ;  Comb.  157;  R.  v. 
^rt/«es,  Ibid.  337.  The  originals  are  evidence,  although  unstamped:  16  East 
208  ;  4  B.  &  Ad.  (24  E.  C.  L.  R.)  617  ;  B.  N.  P.  247  ;  so  is  an  examined  copy, 
the  copy  referred  to  by  the  Stamp  Act  being  that  which  is  delivered  by  the 
steward  to  the  tenant :  Doe  v.  Freeman.,  12  M.  &  "W.  844. 

*■  Per  Holroyd,  J.,  in  Appleton  v.  Lord  Brayhroohe,  6  M.  &  S.  38. 

»  B.  N.  P.  247  ;  16  East  208. 

*  Doe  d.  Churchwardens  of  Croi/don  v.  Cook,  5  Esp.  C.  221 ;  and  see  Style  450; 
E.  V.  Shellei/,  3  T.  R.  141  ;  E.  v.  AUgood,  7  T.  R.  746  ;  E.  v.  Lucas,  10  East  235  ; 
Bateman  v.  Phillips,  4  Taunt.  162.  Court  rolls,  containing  licenses  to  fish, 
granted  in  the  17th  century  at  certain  rents,  are  admissible  to  prove  a  prescrip- 
tive right  to  a  certain  fishery,  claimed  as  appurtenant  to  a  manor,  without 
showing  the  actual  payment  of  those  rents,  where  it  appears  -that  during  the 
last  century  leases  have  been  granted  of  the  fishery,  and  that  for  the  last  forty 
years  the  rents  under  the  leases  have  been  regularly  paid,  or  that  other  acts  of 
ownership  have  been  acquiesced  in  :  Eogers  and  others  v.  Allen,  1  Camp.  C.  109. 
As  to  the  right  of  inspecting  Court  rolls,  see  Vol.  II.,  tit.  Inspection.  The 
right  to  inspect  does  not  depend  on  the  pendency  of  a  suit :  R.  v.  Lucas,  10  East 
235  ;  but  see  E.  v.  AUgood,  7  T.  R.  746,  contra.  An  inspection  will  be  granted 
on  a  prima  facie  title  ;  10  East  235,  as  to  ascertain  a  right  (to  cut  timber  e.  g.) 
which  the  lord  disputes  :  E.  v.  Toiver,  4  M.  &  S.  162.  Where  a  lord  of  a  manor 
is  indicted  for  a  nuisance  in  not  repairing  the  bank  of  a  river,  the  Court  will 
not  compel  him  to  allow  the  prosecutor,  even  though  he  is  a  tenant  of  the 
manor,  to  inspect  the  court  rolls  for  the  purpose  of  obtaining  evidence  in  support 
of  the  prosecution  :  E.  v.  Earl  of  Cadogan,  4  B.  &  Aid.  (7  E.  C.  L.  R.)  902. 

y  Doe  v.  Mee,  2  B.  &  Ad.  (24  E.  C.  L.  R.)  617 ;  and  see  Doe  v.  Freeman,  supra, 
note  (s). 


455  MIXED     DOCUMENTS. 

The  books  of  a  corporation,^  containing  a  register  of  their  public 
acts,  are  evidence  as  between  the  members  of  the  body,  or  against 
the  body,  for  thev  contain  the  rules  and  regulations  to  which  they 
are  all  subject,  and  to  which  all  are  privy. ^  But  they  are  not  evi- 
dence for  the  corporation  against  a  stranger.''  ^ 

In  the  case  of  Marriage  v.  Laivrencc,"  where  in  an  action  for  tres- 
pass the  issue  was  upon  the  right  of  the  corporation  of  Maiden  to 
take  certain  tolls,  it  was  held  that  an  entry  from  the  books  of  the 
corporation,  dated  18  Hen.  VIII.,  purporting  to  contain  the  proceed- 
ings of  the  corporation  against  the  masters  of  two  ships,  who  had  re- 
fused *to  pay  tolls,  the  seizure  of  the  ships,  and  the  submis- 
L  -I  sion  of  the  masters  to  the  payment  of  a  fine,  and  to  have 
been  signed  by  the  corporation  clerk,  was  inadmissible,  because  the 
entry  was  not  of  a  public  nature.  But  it  was  said  that,  if  the  sub- 
ject of  the  entry  had  been  of  a  public  nature,  the  case  would  have 
been  different. 

^  For  further  details  of  the  evidence  respecting  corporations  and  companies, 
see  Vol.  II.,  tit.  Corporations. 

^  See  the  case  of  Thetford^  12  Vin.  Abr.  90,  pi.  16  ;  and  R.  v.  Mothersell, 
Str.  93. 

^  Mayor  of  London  Y.  Lynn,  1  H.  Bl.  214,  n. ;  The  Mayor  of  King ston-upon-Hidl 
V.  Horner,  Cowp.  102.  Entries  in  corporation  books  in  order  to  show  that  the 
curate  had  been  ar>oointed  by  the  corporation  were  held  inadmissible  as  evidence 
to  establish  their  right  against  the  vicar:  Attorney- General  v.  Warivick  Corp., 
4  Russ.  222. 

®  3  B.  &  Aid.  142 ;  see  The  Mayor  of  King ston-upon- Hull  v.  Horner,  Cowp. 
103,  where,  in  an  action  by  the  coi'poration  for  tolls,  entries  from  the  corpora- 
tion books  of  the  particulars  of  the  tolls  receivable  to  the  use  of  the  mayor,  &c., 
were  read.  Copies  of  an  ancient  schedule  produced  from  the  muniments  of  the 
corporation,  delivered  to  the  toll  collectors,  and  by  which  they  collected,  were 
held  admissible  for  the  corporation,  although  it  would  have  been  otherwise  if 
not  shown  to  have  been  so  delivered  from  the  corporation,  however  accurately 
corresponding:  Brett  v.  Beales,  Moo.  &  M.  (22  E.  C.  L.  R.)  417. 

'  The  books  of  a  corporation,  when  proved  to  be  such,  are  evidence  of  its  acts 
and  proceedings :  Ovoings  v.  Speed,  5  Wheat.  420 ;  Highland  Turnpike  Co.  v. 
McKean,  10  Johns.  154.  They  are  evidence  in  dispute  between  its  members, 
but  not  against  strangers:  Commomvealth  v.  Woelper  et  al.,  3  S.  &  R.  29. 
Entries  made  by  a  clerk,  in  the  books  of  trustees  who  are  a  corporation,  are  not 
evidence  in  a  cause  in  which  they  are  interested  :  Jackson  v.  Walch,  3  Johns. 
226  ;  see  Farmers'"  and  Mechanics''  Bank  v.  Boraeff,  1  Rawle  152.  M. 

See  Fortin  v.  U.  S.  Wind  Engine  Co.,  48  111.  451 ;  Schell  v.  Second  BJc,  14 
Minn.  43  -,  State  v.  Thomas,  64  N.  C.  74 ;  Mudgett  v.  Horrell,  33  Cal.  25 ;  Glover 
v.  Jfnnter,  28  Ind.  185  ;  Chase  v.  Sycamore  R.  R.  Co.,  38  111.  215 ;  Graff  v.  Pitts- 
burgh and  SteuhenviUe  R.  R.  Co.,  7  Cas.  489;  Haynes  v.  Brown,  36  N.  H.  545; 
Woonsocket  R.  R.  Co.  v.  Sherman,  8  R.  I.  577. 


CORPORATION     BOOKS  —  HOW     PROVED.  456 

A  customary,  found  in  a  book  amongst  the  records  of  a  corpora- 
tion, was  held  to  be  evidence  against  the  corporation.  But  in  general, 
unless  papers  relate  to  the  proceedings  of  the  corporation  as  a  cor- 
porate body,  they  are  not  evidence ;  and,  therefore,  a  letter  found 
in  a  corporation  chest,  in  which  A.  B.  was  described  to  be  of 
another  place,  was  held  to  be  inadmissible  on  a  question  whether 
A.  B.,  at  the  time  he  did  a  corporate  act,  was  an  out-burgess  or 
not.*^ 

Upon  the  same  principle,  the  books  of  public  companies,®  or  copies 
of  them,  are  evidence  between  those  who  are  interested  in  them,  as 
against  each  other,  or  against  the  company ;  as  the  books  of  the 
East  India  Company,  in  a  cause  between  the  parties  having  stock 
there.^  So  the  bank  books,^  or  copies,""  from  them  are  evidence  to 
prove  a  transfer  of  stock  in  the  public  funds.' 

To  establish  the  book  of  a  corporation  in  evidence,  it  should  be 
shown  to  have  been  publicly  kept  as  such,  and  that  the  entries  were 
made  by  the  proper  officer.  But  *an  entry  made  by  one  r* /in 7-1 
who  acts  for  the  officer  pro  tempore,  as  during  illness  of  the 
town  clerk,  is  evidence,  if  the  fact  be  proved.''  On  this  ground,  upon 
a  quo  warranto,  it  was  held  that  minutes  of  the  proceedings  of  a  cor- 
poration, taken  several  years  before  by  the  prosecutor's  clerk,  and 
not  kept  as  a  public  book,  had  been  properly  rejected  at  the  trial.' ^ 

*  B.  V.  Gwyn,  Str.  401. 

«  Geary  v.  Hoskins,  7  Mod.  129  ;  see  2  Str.  1005  ;  1  Wils.  240 ;  1  Bl.  R.  40 ;  1 
T.  R.  689 ;  Doug.  593 ;  3  Salk.  154. 

^  Breton  v.  Cope,  Peake's  C.  30. 

e  Mortimer  v.  MacCallan,  6  M.  &  W.  68. 

^  R.  V.  Mothersell,  Str.  92 ;  12  Vin.  Abr.  90,  pi.  16.  The  usual  mode  of  pro- 
curing an  inspection  of  corporation  books  is  by  rule,  where  an  action  is  pending  ; 
by  mandamus  in  other  cases.  A  rule  can  only  be  granted  where  a  cause  is 
pending,  and  only  then  for  a  limited  inspection.  For  an  unlimited  inspection, 
the  course  is  by  mandamus :  R.  v.  Babb,  3  T.  R.  579 ;  Lynn  Corporation  v. 
Denton,  1  T.  R.  689  ;  Barnstaple  Corporation  v.  Lathey,  3  T.  R.  303;  see,  further 
on  the  subject,  Vol.  II.,  tit.  Inspection. 

'  See  7  &  8  Vict.  c.  110,  for  the  regulations  aifecting  private  joint-stock  compa- 
nies and  their  books,  and  "  The  Companies  Clauses  Consolidation  Act,  1845"  (8 
&  9  Vict.  c.  16),  for  the  regulations  affecting  companies  for  the  execution  of 
works  of  a  public  nature,  for  which  Acts  of  Parliament  are  obtained. 

^  R.  V.  Mothersell,  Str.  92 ;  12  Vin.  Abr.  90,  pi.  16. 

1  Str.  92 ;  12  Vin.  Abr.  90,  pi.  16. 

'  Before  corporation  books  can  be  admitted  in  evidence,  it  must  be  shown 
that  they  are  kept  by  the  proper  officer  or  some  other  person  authorized  to  make 
entries  in  his  necessary  absence :  It  is  not  sufficient  to  prove  the  books  to  be  in 


457  MIXED     DOCUMENTS. 

The  seal  of  a  public  corporate  body  need  not  be  proved,  as  the  seal 
of  an  individual,  by  means  of  a  witness  who  saw  the  seal  affixed,  &c., 
to  the  instrument ;  it  is  sufficient  to  show  that  the  seal  is  the  official 
seal  of  the  corporate  body.™  As  public  seals  are  of  a  permanent 
nature,  it  seems  that  they  are  not  within  the  principle  of  the  rule 
which  dispenses  with  the  proof  of  private  seals  affixed  to  documents 
thirty  years  old."  The  documents  must  be  proved  to  have  come  from 
the  proper  place  of  deposit.  But  in  an  action  for  a  false  return  to  a 
7nandamus°  it  was  held  that  a  corporator  was  capable,  as  a  depository 
of  the  muniments,  of  being  brought  forward  for  the  purpose  of  pro- 
ducing them,  subject  to  cross-examination  by  the  *adversary, 
L  -•  as  to  the  custody  of  the  document.^  And  if  the  party  ob- 
jecting Avished  to  inquire  as  to  the  custody,  the  corporator  might  be 
examined  on  the  subject. "^ 

""  Moises  V.  Thornton,  8  T.  R.  307;  Chadivick  v.  Bunting,  Ry.  &  M.  (21  E.  C. 
L.  R.)  306.  It  has  been  held  that  the  seal  of  the  city  of  Loudon  proves  itself, 
by  Lord  Kenyon  :  Woodmass  v.  Mason,  1  Esp.  C.  53.  The  production  of  a  sealed 
instrument  purporting  to  be  a  diploma  of  a  degree  conferred  by  the  University 
of  St.  Andrew's,  and  proof  that  a  person  calling  himself  the  university  libra- 
rian, had  shown  in  a  room  which  he  called  the  University  Library  a  seal  cor- 
responding with  instrument  produced,  was  held  to  be  sufl&cient  evidence  :  Col- 
lins V.  Carnegie,  1  Ad.  &  E.  (28  E.  C.  L.  R.)  695. 

°  R.  V.  Bathwick,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  648.  Where  it  was  also  held 
that  the  seal  of  a  bishop  to  an  ordination  was  not  to  be  regarded  as  his  corporate 
seal.  But  it  is  to  be  observed  that  a  corporation  may  from  time  to  time  alter 
its  seal. 

0  R.  V.  Netherthong,  2  M.  &  S.  337. 

P  As  to  the  means  of  pi-ocuring  an  inspection  of  such  documents,  see  tit.  In- 
spection. 

•J  Per  Lord  Ellenborough,  R.  v.   Netherthong,  2  M.  &  S.  337,  citing  a  case  in 

the  handwriting  of  a  person  stated  in  the  book  itself  to  be  the  Secretary,  if  he 
is  not  otherwise  shown  to  be  the  proper  officer :  Highland  Turnpike  Co.  v. 
McKcan,  10  Johns.  154.  A  copy  of  an  entry  in  a  corporation  book  is  not  au- 
thenticated by  the  seal  of  the  corporation  ;  an  examined  copy  must  be  produced  : 
Stoever  v.  Lessee  of  Whitman,  6  Binn.  416.  The  original  corporation  book  is 
good  evidence  in  a  suit  by  the  corporation  against  one  of  its  members,  although 
it  is  not  under  ike  corporate  seal :  Fleming  et  al.  v.  Wallace,  2  Yeates  120.  The 
seal  of  a  private  corporation  does  not  authenticate  itself;  it  must  be  proved  by 
testimony  :  Dea  v.  Vreelandt,  2  Ilalst.  352  ;  Leasure  v.  HiUegas,  7  S.  &  R;  313  ; 
Foster  v.  Shaw,  Ibid.  156  ;  Jackson  v.  Pratt,  10  Johns.  381.  A  secretary  of  an 
incorporated  banking  company,  is  not,  in  Massachusetts,  a  certifying  officer  ;  a 
copy,  therefore,  of  the  votes  and  proceedings  of  such  corporation,  certified  by 
him,  is  not  evidence,  unless  it  is  sworn  to.  But  semhle  that  an  extra-judicial 
affidavit  is  sufficient  to  authenticate  such  copy :  Ilallowcll  &  Augusta  Bank  v. 
Hamlin  el  al.,  14  Mass.  178  ;  see  Rust  v.  Boston  Mill  Corporation,  6  Pick.  158. 


PRIVATE     DOCUMENTS.  458 

Bj  the  Municipal  Corporation  Act,  5  &  6  Will.  IV.,  c.  7G,  every 
person  is  entitled,  without  fee,  to  inspect  the  freemen's  roll  at  all 
reasonable  times,  and  the  list  of  persons  claiming  to  be  inserted  on 
the  burgess  list,  or  objected  to,  at  all  reasonable  hours,  Sunday  ex- 
cepted, during  the  eight  days  next  before  the  1st  of  October  ;  and  the 
town  clerk  is  moreover  bound,  at  a  certain  price,  to  furnish  copies  of 
these  documents.'"  The  public  accounts  of  the  borough  are  open  to 
the  inspection  of  the  aldermen  and  councillors  before  audit ;  and  after 
they  have  been  audited  and  made  up  every  year,  every  ratepayer  is 
at  liberty  to  inspect  the  abstract  of  their  contents,  which  the  town 
clerk  must  make  ;^  and  every  burgess  is  entitled  at  all  reasonable  times 
to  inspect  and  take  copies  of  the  book  in  which  minutes  of  the  town 
council  are  entered,  and  any  order  in  council  for  payment  of  any 
moncT 


t 


IV. — Private  Documents. 

Private  writings  and  entries  may,  with  a  view  to  their  operation  in 
evidence,  be  distinguished  into  those :  First,  To  which  the  person 
against  whom  they  were  offered  was  party  or  privy.  Secondly,  En- 
tries made  by  third  persons.  And  they  may  be  considered,  first,  with 
respect  to  their  nature,  admissibility  and  effect  in  evidence ;  and, 
secondly,  with  respect  to  the  means  of  proof.  Documents  offered  in 
evidence  against  one  who  was  a  party  or  privy   to  them,  are  either 

under  seal  or  not  under  seal.  All  documents  *to  which  a  per-  ^    ,  ^^^ 

r  4591 
son  was  party"  or  privy  are  in  general  admissible  in  evidence  ^         ^ 

against  him,  since  they  operate  as  acknowledgments  or  admissions 
on  his  part,  or  that  of  another  through  whom  he  claims,  that  the 
facts  contained  in  them  are  true,  particularly  if  the  admission  was 
against  the  interest  of  the  party  so  making  it.^  Thus,  upon  a  ques- 
tion touching  the  right  of  presentation  by  the  bishop,  a  case  stated 
by  a  former  bishop  for  counsel's  opinion,  and  found  among  the 
family  muniments   of  the   latter's   descendants,  is  admissible   in   evi- 

which  Lord  Kenyon  had  so  acted  in  an  action  for  a  false  return  of  a  man- 
damus. 

"■  Sect  5  &  17  ;  a  penalty  of  50Z.  is  imposed  for  refusal,  by  s.  48. 

«  Sect.  93  ;  and  1  Vict.  c.  78. 

*  Sect.  69  ;  and  1  Vict.  c.  78. 

"  Lord  Barrymore,  Administrator  v.  Taylor,  1  Esp.  C.  326,  Kenyon,  C.  J.,  1795; 
and  see  Smith  v.  Young,  1  Camp.  439  ;  Randle  v.  Blackburn,  5  Taunt.  (1  E.  C. 
L.  R.)  245. 

^  Bishop  of  Meath  v.  Marquis  of  Winchester,  3  Bing.  N.  C.  (32  E.  C.  L.  R.) 
193  ;  see  Vol.  II.,  tit.  Admissions. 


459  PRIVATE     DOCUMENTS. 

dence  against  the  former.  All  written  contracts  are  made  for  the 
express  purpose  of  being  afterwards  used  as  evidence  of  the  contract, 
the  only  difference  between  sealed  and  parol  contracts  in  this  respect 
being  this — that  the  former  are  more  solemnly  authenticated,  and 
not  so  easily  revoked.  So  essential  is  it  that  the  rights  of  men 
should  be  evidenced  by  documents  of  this  nature,  that  the  law  itself 
requires,  in  many  instances,  the  evidence  of  a  deed  to  notify  and 
establish  the  particular  facts,  and  in  many  others  renders  a  contract, 
or  memorandum  in  writing,  essential  for  the  same  purpose.  Thus 
incorporeal  rights,  as  to  fairs,  markets,  and  advowsons,  cannot  be 
transferred  except  by  grant/  and  the  provisions  of  the  Statute  of 
Frauds  in  many  instances  render  a  note  or  memorandum  in  writing 
necessary  to  the  proof  the  contract.'' 

In  general,  an  admission  under  seal  is  conclusive  upon  the  obligor, 
and  estops  him  from  asserting  or  proving  the  contrary.  Thus,  if 
a  condition  in  a  bond  recite  that  a  particular  suit  is  depending  in 
the  Court  of  King's  Bench,  the  obligor  is  estopped  from  saying  that 
r*J.rm  *^^^^'®  ^^  "°  ^^^^  ^"^^  *there.*  So  if  the  condition  of  a  bond 
L  -■  be  to  perform  the  covenants  in  a  particular  indenture,  he  is 
estopped  from  saying  that  there  is  no  such  indenture.^  So  a  grantor 
is  estopped  by  his  deed  from  saying  that  he  had  no  interest  in  the 
thing  granted."     But  although  where  a  distinct  statement  of  a  par- 

^  See  Gilb.  Law  of  Ev.  88  ;  Vol.  II.,  tit.  Prescription.  And  now  leases  for 
more  than  three  years,  and  certain  other  instruments,  see  8  &  9  Vict.  c.  106. 

^  29  Car.  II.  c.  3. 

»  Cro.  Eliz.  750  ;  Com.  Dig.,  Estoppel,  A.  2  ;  5  Ex.  557. 

''  1  Rol.  872,  1.  30  ;  Com.  Dig.,  Estoppel,  A.  2.  For  other  instances,  see  tit. 
Admissions. 

"  2  T.  R.  171.  But  the  principle  does  not  apply  where  the  grantor  is  a  trustee 
for  the  public,  and  grants  that  which  he  was  not  authorized  by  the  Act  from 
which  he  derives  his  authority :  Ibid.  But  this  is  confined  strictly  to  the  case 
in  which  he  lias  violated  an  Act  of  Parliament,  which  must  be  presumed  to  have 
been  known  to  the  other  party.  Thus  public  trustees  may  be  estopped  by  a  re- 
cital from  alleging  against  their  mortgagee  of  tolls  that  they  had  granted  a  prior 
mortgage  of  them :  Doe  v.  Home,  3  Q.  B.  (43  E.  C.  L.  R.)  757  ;  E.  v.  White,  4 
Q.  B.  (45  E.  C.  L.  R.)  111.  If,  however,  it  appear  from  any  part  of  the  recital 
or  deed  that  the  grantor  has  no  estate,  or  only  a  limited  or  equitable  one,  he  will 
not  be  estopped  :  Purr/eter  v.  Harris,  7  Q.  B.  (53  E.  C.  L.  R.)  708.  In  order  also 
to  raise  an  estoppel  a  recital  should  not  be  argumentative,  but  direct  and  precise 
on  the  point ;  thus  where  an  agreement  for  a  lease  of  a  farm  recited  that  the  de- 
fendant had,  as  he  was  advised,  legally  put  an  end  to  a  former  lease  granted  to 
S.  7/.,  a  bankrupt,  by  entering,  under  a  power  so  to  do,  on  the  tenant's  bank- 
ruptcy; and  it  was  agreed  that  the  defendant  should  grant  a  lease  to  the  plain- 
tifl'  of  the  farm  at  a  yearly  rent,  the  lease  to  commence  on  a  day  mentioned,  if 


ESTOPPEL     TO     BE     PLEADED,     WHEN.  460 

ticular  fact  is  made  in  tlie  recital  in  a  bond  or  other  instrument 
under  seal,  and  a  contract  is  made  "with  reference  thereto,  it  is  not 
competent  to  the  parties  bound  by  that  deed  to  deny  the  recital  in 
an  action  upon  it  between  them  ;  and  although  the  same  rule  may 
apply  wliere  the  instrument  is  not  under  seal,  yet  in  an  action  not 
founded  on  the  instrument,  but  ■wholly  colhiteral  to  it,  the  parties 
are  not  so  bound,  even  in  an  action  ^between  themselves, 
but  may  show  the  circumstances  under  which  the  admission  ^  J 
was  made,  in  order  to  prove  that  it  is  not  entitled  to  weight.*^  A 
deed-poll  does  not  estop  a  lessee  or  grantee,  for  it  is  the  deed  of  the 
lessor  or  grantor  only.® 

In  general,  however,  in  order  to  conclude  the  party  by  his  deed 
by  way  of  estoppel,  it  should  be  pleaded,  for  if  his  adversary  does 
not  rely  upon  the  estoppel,  the  court  and  jury  are  not  bound  by  it; 
but  the  jury  may  find  the  matter  at  large  according  to  the  facts,  and 
the  court  will  give  judgment  accordingly.  He  asks  them  their 
opinion,  and  they  are  bound  to  give  it.  Where,  however,  the  title 
of  the  party  is  by  estoppel,  and  he  has  no  opportunity  of  pleading 
it,  the  jury  cannot  find  against  the  estoppel.  Thus  in  debt  for  rent 
on  an  indenture  of  lease,  if  the  defendant  plead  nil  debet,  he  cannot 
give  in  evidence  that  the  plaintiff"  had  nothing  in  the  tenements, 
because  if  he  had  pleaded  that  specially,  the  plaintiff"  might  have 
replied  the  indenture,  and  estopped  him ;  but  if  the  defendant  plead 
nihil  habuit,  &c.,  and  the  plaintiff",  instead  of  relying  on  the  estoppel, 
reply  habuit,  &c.,  he  waives  the  estoppel,  and  leaves  the  matter  at 
large  ;  he  puts  the  fact  in  issue;  and  the  jury  are  to  find  the  truth, 
notv.ithstandinor  the  indenture.^ 

But  when  an   estoppel  creates  an  interest  in  lands,  the  court  will 

the  defendant  could  then  legally  execute  the  same,  or  as  soon  as  he  legally  could ; 
the  rent  to  commence  with  the  term,  or  on  possession  being  given,  whichever 
should  first  happen ;  it  was  held,  that  although  the  recital  might  be  prima  facie 
evidence  against  the  defendant,  that  he  had  power  to  grant  the  lease,  that  evi- 
dence was  answered  by  proof  that  the  bankruptcy  of  *S'.  //.  had  been  superseded  : 
Wright  V.  Colls,  19  L.  J.,  C.  P.  60. 

^  Carpenter  v.  Buller,  8  M.  &  W.  209 ;  Wiles  v.  Woodward,  5  Ex.  557. 

®  Co.  Litt.  363,  b.  A  lessee  by  indenture,  in  an  action  of  covenant  for  plough- 
ing up  Laines  Meadows,  without  paying  at  a  certain  sum  per  acre,  was  held  not 
to  be  estopped  from  averring  that  Laines  Meadows  were  not  meadow  ground, 
although  they  were  described  as  meadows  in  the  lease  :  Skipivith'Y.  Green,  Str. 
610. 

f  P.  C.  Salkeld  277  ;  Com.  Dig.,  Estoppel,  C. ;  Ibid.,  Pleader,  S.  5 ;  B.  N.  P. 
298.  See  the  notes  to  Trevivan  v.  Lawrence,  Salk.  276 ;  2  Smith's  Lead.  Cas. 
436. 


461  PRIVATE    DOCUMENTS. 

adjudge  accordingly  upon  the  facts  found  by  the  jury.  As  if  A.  lease 
land,  in  which  he  has  no  interest,  to  B.  for  six  years,  and  then  pur- 
r*4.ft91  ^^^s®  ^  lease  of  the  same  *lands  for  twenty-one  years,  and 
afterwards  lease  to  C.  for  ten  years,  and  these  facts  are 
found  by  verdict,  the  court  will  adjudge  the  lease  in  B.  to  be  good, 
though  it  was  so  only  by  the  conclusion.^ 

So  in  other  cases,  where  the  party  who  might  have  relied  upon  the 
estoppel,  in  pleading,  waives  it,  and  gives  the  deed  in  evidence,  al- 
though the  jury  are  not  bound  by  the  estoppel  from  finding  accord- 
ing to  the  truth  of  the  fact,  yet  it  seems  they  would  not  be  warranted 
in  finding  a  verdict  contrary  to  the  solemn  admission  of  the  party, 
without  the  strongest  evidence  of  fraud.  As,  for  instance,  before  the 
rules  of  Hilary  Term  1834,  in  an  action  of  assumpsit,  where  the 
defendant  pleaded  the  general  issue,  and  gave  in  evidence  a  release 
which  he  might  have  relied  upon  as  an  estoppel ;  although  he  waived 
the  estoppel,  still  the  release  was  considered  to  be  conclusive  evi- 
dence for  the  defendant,  in  the  absence  of  fraud.  There  are  also 
numerous  instances  in  which  a  party,  by  his  admission  and  represen- 
tations, is  concluded  from  showing  the  contrary  in  evidence,  although 
the  fact  could  not  have  been  pleaded  by  way  of  estoppel.''  For  in- 
stance, where  a  man  has  represented  a  woman  to  be  his  wife,  in  an 
action  for  necessaries  supplied  to  her,  he  would  in  general  be  con- 
cluded by  that  representation,  which  would  operate  as  a  kind  of 
estoppel  in  pais. 

It  is  a  general  rule  that  all  privies,  whether  in  blood  as  the  heir,' 
r*dR^1    ^^  estate  as  the  vendee,'^  or  in   law  as  the  *lord  by  escheat,^ 
or  one  who  claims  under  another  act  of  law,  or  in  the  post,™ 
tenant  in  dower,  or  by  courtesy,"  are  bound  by  an  estoppel. 

The  effect  of  deeds  and  written  contracts,  not  under  seal,  will  be 
hereafter  more  fully  considered  under  the  several  heads  to  which  they 
belong,  as  bonds,   covenants,   agreements,  bills  of  exchange,  policies 

8  Com.  Dif^.,  Estoppel,  E.  10;  see  also  Pollex.  68.  So  if  the  plaintiflF  in  eject- 
ment make  title  by  a  judgment,  in  a  scire  facias,  on  a  judgment  in  Trinity 
Term,  where  the  judgment  was  in  fact  of  Michaelmas  Term,  the  jury  cannot  find 
that  the  original  judgment  was  of  Michaelmas  Term ;  Trevivan  v.  Laivrence,  Salk. 
27').  iSo  if  a  woman  sue  or  be  sued  as  sole,  and  judgment  be  against  her  as  such, 
though  she  was  covert,  the  sheriff  shall  take  advantage  of  the  estoppel :  1  Rol. 
809,  1.  50 ;  1  Salk.  310 ;  Com.  Dig.,  Estoppel,  B.  D. 

'•  Freeman  v.  Cook,  2  Ex.  G54;  13  M.  it  W.  820,     See  Vol.  11.,  tit.  Admission. 

'  Co.  Litt.  352,  a. ;  Pol.  61,  66  ;  Com.  Dig..  Estoppel,  B. ;  3  T.  R.  365. 

"  1  Salk.  276.  '  Co.  Litt.  352,  a. 

■"  Co.  Litt.  352,  b.  °  Pol.  61 ;  Co.  Litt.  352. 


ENTRIES,     ETC.,     CONNECTED    WITH    ACTS.  463 

of  insurance,  &c.  It  may  be  observed  here,  that  since  in  all  these 
cases  these  documents  have  been  framed  by  the  parties  them- 
selves as  the  authentic  evidence  of  the  facts  which  they  contain,  and 
of  their  own  intentions,  no  other  evidence  can  in  general  be  admitted 
to  alter  the  obvious  sense  and  meaning  of  the  terms  which  they  have 
used;  to  admit  this  would  be  to  deprive  them  of  all  effect  as  ])erma- 
nent  memorials  for  the  purposes  of  evidence,  for  they  could  no  longer 
be  so  considered  if  their  meaning  could  be  altered  and  subverted  by 
extrinsic  and  collateral  evidence.  Since  this  is  a  fundamental  rule, 
applicable  to  written  evidence  in  general,  its  nature  and  application 
will  be  more  fully  discussed  hereafter." 

Secondly.  Declarations  and  entries  made  by  third  persons  (for  both 
stand  upon  the  same  footing)  are  not  in  ordinary  cases  admissible  ; 
they  usually  fall  within  the  description  of  res  inter  alios  acta^ 

Whether  the  declaration  by  a  third  person  be  oral  or  written,  the 
general  objection  applies,  that  it  was  not  made  under  the  sanction  of 
an  oath,  and  that  the  party  against  whom  it  is  offered  had  no  opportu- 
nity to  cross-examine.  Such  a  declaration  or  entry  is  therefore,  on 
principles  already  adverted  to,  inadmissible,  unless  its  admissibility 
be  warranted  by  some  special  rule  of  law  applicable  to  the  particular 
circumstances.*^ 

"  See  tit.  Parol  Evidence. 

P  See  above,  tit.  Res  inter  alios,  &c.  As  to  those  which  operate  by  way  of 
admission,  see  Vol.  II.,  tit.  Admission. 

*•  In  trover  for  taking  goods  by  defendant  under  color  of  distress,  the  question 
being  whether  the  defendant  or  /.  B.  was  the  plaintiff's  landlord,  the  latter  having 
been  shoAvn  by  the  plaintiff  to  have  been  the  party  to  whom  he  and  his  father 
had  always  paid  the  rent ;  held,  that  the  defendant,  in  order  to  show  that  he 
received  it  merely  as  agent,  could  not  give  in  evidence  accounts  rendered  by 
that  party  in  which  he  described  himself  as  agent,  as  the  party  being  alive 
might  have  been  called,  and  that  they  were  therefore  properly  rejected  :  Spargo 
V.  Brown,  9  B.  &  C.  (17  E.  C.  L.  R.)  935.  In  assumpsit  for  two-fifths  of  a  loss 
recovered  by  the  defendants  as  agents  for  *S'.,  an  invoice  sent  by  S.  to  the  de- 
fendants, to  enable  them  to  recover  from  the  underwriters,  was  held  to  be  evi- 
dence of  the  plaintiff's  interest:  Mendham  and  another  v.  Thompson  and  another^ 
1  Stark.  316,  Ellenborough,  C.  J.,  1816.  But  an  invoice  made  out  by  S.,  and 
not  shown  to  have  been  so  sent,  was  rejected  as  merely  S.'s  declaration.  In  an 
action  against  underwriters,  the  bill  of  lading,  signed  by  the  captain,  is  not 
evidence  of  the  shipment  of  the  goods  :  Dickson  v.  Lodge,  1  Stark,  C.  (2  E.  C. 
L.  R.)  226.  A  banker's  ledger  is  inadmissible  to  show  that  a  customer  had  no 
funds  in  the  banker's  hands:  Furness  v.  Cope,  5  Bing.  (15  E.  C.  L.  R.)  114. 
Semhle,  more  properly  to  show  that  no  entry  was  made  in  that  ledger.  Note, 
that  one  of  the  clerks  stated  that  it  was  the  book  to  which  all  the  clerks  referred 
to  see  whether  they  should  pay  the  checks  presented  to  the  house ;  and  Best,  C. 


464  PRIVATE     DOCUMENTS. 

r*4.r4.T  *The  entry  or  declaration  of  a  mere  tbird  person  may  be 
admissible  as  evidence,  first  where  it  accompanies  and  is  ex- 
planatory of  tbe  nature  and  quality  of  a  material  fact,  or  secondly, 
where  it  is  admitted  on  a  principle  of  necessity,  warranted  by  par- 
ticular circumstances,  which  afford  a  reasonable  assurance  that  the 
party  whose  testimony  is  no  longer  attainable  knew  the  fact,  and 
communicated  it  faithfully. 

The  considerations  which  warrant  the  reception  of  this  latter  class 
of  evidence  are  principally  these: — 

V^lC^l  *That  the  declaration  or  entry  was  againsf  the  pecuniary 
or  proprietary^  interest  of  the  party  to  make  it;  or  that  the 
entry  was  made  at  the  time,  in  the  ordinary  course  of  his  business, 
by  a  person  whose  duty  it  was  to  make  it ;'  and  that  recourse  cannot 
be  had  to  his  testimony  in  consequence  of  his  death. 

Considerable  doubt  seems  to  have  existed  at  one  time  whether  an 
entry  so  made  in  the  ordinary  course  of  business  was  admissible  un- 
less" it  appeared  also  to  be  against  the  interest  of  the  party  making 
it ;  but  "it  seems  now  to  be  clear  that  the  circumstance  of  its  being 
made  in  such  course,  if  the  party  who  made  it  be  dead,  is  sufficient 
to  warrant  the  admission  of  the  evidence. 

Indeed  it  may  be  observed,  that  the  consideration  that  the  entry 
was  made  in  the  course  of  discharging  a  professional  or  official  duty, 
in  which  the  party  was  engaged,  seems  to  afford  a  much  safer  warrant 
for  giving  credit  to  such  evidence  than  is  supplied  by  the  considera- 
tion that  the  entry  or  declaration  might  possibly  have  been  used  to 
the  prejudice  of  the  party. 

J.,  held  that  it  was  admif3sible  in  order  to  obviate  the  necessity  for  calling  a 
multitude  of  clerks,  and  that  it  was  evidence  merely  to  negative  the  fact  of  the 
trader  having  money  in  the  house. 

In  an  action  on  a  warranty  of  a  horse  sold  by  an  agent,  it  was  proposed  to 
ask  a  witness  whether  the  agent  did  not  say  on  the  day  of  the  sale  that  he 
would  warrant  the  horse,  but  the  evidence  was  rejected  as  a  mere  conversation 
with  a  stranger  ;  but  it  might  have  been  otherwise  if  in  offering  the  horse  for  sale 
he  had  oflFered  the  warranty :  Allen  v.  Denstone,  8  C.  &  P.  (34  E.  C,  L.  R.)  760. 

*■  See  the  cases  on  this  subject  fully  stated  and  discussed  in  the  notes  to  Higham 
V.  Ridgway,  2  Smith's  Lead.  Cases,  183,  and  the  reasons  for  the  reception  of  such 
evidence  considered,  ante,  pp.  64,  65.  As  to  declarations  in  cases  of  marriage 
and  pedigree,  see  those  heads,  iilso  tit.  Reputation. 

■  Sussex  Peerage  case,  1 1  CI.  &  F.  85. 

*  See  the  cases  on  this  sulyect  discussed  in  the  notes  to  Pricev.  Lord  'furring- 
Ion,  1  Smith's  Lead.  Cas.  139. 

"  See  the  observations  of  the  Judges  in  Doe  v.  Turford,  3  B.  &  Ad.  (23  E.  C. 
L.  R.)  8'JO;  Doe  v.  liobson,  15  East  32;  Ilighman  v.  Eidgwaij,  10  East  109  ;per 
Lord  Eldoii,  Barker  v.  liai/,  2  Russ.  67. 


ENTRIES     BY    THIRD     PERSONS.  465 

It  is  observable,  that  the  great  object  of  the  rule  is,  to  guard  not 
against  fraud,  but  negligence  and  carelessness  :  the  slightest  sus- 
picion of  fraud  would  be  sufficient  at  once  to  exclude  such  evidence 
and  the  imposing  of  the  limitation,  that  the  entry,  to  be  admissible, 
should  be  apparently  against  the  interest  of  the  party  making  it, 
would  afford  no  security  against  fraud ;  the  forger  of  a  false  entry 
would  *take  care  to  obviate  any  objection  of  this  description, 
by  admitting  payment  or  some  other  fact  apparently  against    "-  -• 

the  interest  of  the  supposed  author  of  the  document.  The  considera- 
tion that  the  entry  is  against  the  interest  of  the  party  is  therefore 
principally  material,  as  it  affords  reason  for  supposing  that  a  person 
would  not  be  likely  to  commit  any  error  or  mistake  which  might  after- 
wards turn  to  his  prejudice.  When,  however,  it  is  considered  that  in 
many  instances  such  entries  remain  in  the  private  custody  of  the 
parties  who  make  them,  it  is  not  probable  that  the  consideration  that 
the  documents  might  be  published  by  accident  or  mistake,  and  might 
in  some  possible  state  of  circumstances,  be  turned  to  the  prejudice  of 
the  party,  would  cause  him  to  exercise  a  degree  of  exactness  and 
caution,  so  far  beyond  that  which  he  would  have  used  in  the  common 
course  of  professional  or  official  duty,  or  ordinary  habits  of  business, 
as  to  supply  a  sound  and  useful  test,  operating  to  the  admission  of  the 
former,  the  rejection  of  the  latter.  In  the  absence  of  all  suspicion 
of  any  motive  to  the  contrary,  it  is  fairl}^  presumable  that  all  entries 
made  in  the  ordinary  routine  of  business  are  truly  made.  The  same 
motive  which  induced  a  party  to  use  the  pains  and  trouble  of  making 
an  entry  at  all,  would  usually  induce  him  to  make  a  true  entry ;  a 
false  one  would  be  of  no  value,  and  the  making  it  would  frequently 
be  more  troublesome  than  to  make  a  true  one ;  it  would  require  the 
additional  trouble  of  invention ;  and  although  the  sparing  of  trouble 
might,  in  many  instances,  induce  a  party  to  state  particulars  without 
sufficient  accuracy,  it  would  seldom  cause  him  to  invent  and  state  a 
transaction  which  never  happened. 

In  the  first  place,  an  entry  or  declaration  accompanying  an  act 
seems,  on  principles  afready  announced,  to  be  admissible  evidence  in 
all  cases  where  a  question  arises  as  to  the  nature  and  qualit}'^  of  that 
act.  Thus  where  the  question  is,  whether  a  promissory  note  was 
originally  void  for  usury,  letters  written  by  the  payee  to  the  maker, 
and  *which  are  contemporary  with  the  note,  are  admissible  , 

to  prove  that  the  consideration  was  usurious.^  L         -^ 

"  Kent  V.  Lowen,  1  Camp.  177  ;  Walsh  v.  Stockdale,  vol.  2.  A  letter  enclosing 
a  promissory  note  may  be  read  as  evidence,  by  the  writer,  to  show  the  purpose 

28 


467  PRIVATE     DOCUMENTS. 

Such  evidence  is  also  admissible  on  the  same  principle,  to  show 
the  intention  with  which  an  act  was  done,  where  the  intention  is 
material/  Thus,  on  questions  of  bankruptcy,  declarations  made  by 
a  trader,  contemporary  with,  or  during  the  act  of  absenting  himself 
from  his  place  of  residence  or  business,  are  constantly  admitted  in 
proof  of  the  real  nature  and  quality  of  the  act/  ^ 

for  which  the  note  was  sent:  Bruce  and  others  v.  Hurley,  1  Stark.  C.  (2  E.  C. 
L.  R.)  23.  And  see  Potez  v.  Glossop,  2  Ex.  191  ;  Lewis  v.  Simpson,  Ibid.  note. 
The  principle  of  these  cases  is  that  the  declarations  or  entries  in  fact  form  part 
of  the  res  gestcB.     See  1  Q.  B.  (41  E.  C.  L.  11.)  50;  and  post,  Vol.  II. 

y  Snpra,  p.  51,  52;  Vol.  II.,  tit.  Intentio.v — Malice.  In  The  Attorney-Gen- 
eral'Y.  Brazen  Kose  College,  2  CI.  &  F.  295,  the  House  of  Lords  decided  thai  the 
manner  in  which  the  founder  of  a  school,  who  was  the  first  trustee  under  the 
grant  by  which  it  was  provided  for,  conducted  himself  in  the  distribution  of  the 
fund,  is  very  strong  evidence  of  intention,  and  may  be  so  treated  by  the  Court 
in  construing  the  grant. 

^  Eouch  v.  Great  Western  Railway  Company,  1  Q.  B.  (41  E.  C.  L.  R.)  50 ;  su- 
pra, pp.  51,  87,  88,  89 ;  Vol.  II.,  tit.  Bankruptcy.  When  an  act  has  been  done 
to  which  it  is  necessary  to  ascribe  a  motive,  what  the  person  has  said  at  the 
time  is  admissible,  for  the  purpose  of  explaining  the  act:  Bateman  v.  Bailey,  5 
T.  R.  512.  Statements  made  by  the  bankrupt  showing  his  knowledge  and  opinion 
of  the  state  of  his  affairs  at  the  time  of  the  acts  in  question,  have  been  held  to 
be  receivable,  although  not  accompanying  any  other  act  done.  So  letters  re- 
ceived by  him  in  answer  to  applications  for  advances  are  evidence  to  show  the 
refusal  to  render  him  such  assistance,  but  not  as  to  any  facts  stated  in  them  : 
Yacher  v.  Cocks,  Moo.  &  M.  (22  E.  C.  L.  R.)  353.  A  trader  in  embarrassed 
circumstances  made  an  assignment  of  all  her  effects,  &c.,  for  the  benefit  of  cred- 
itors :  in  an  action  after  her  death,  treating  the  assignee  as  executor  de  son  tort, 
a  list  of  creditors  made  out  by  a  friend  of  the  trader  under  her  direction,  about 
the  time  of  the  execution  of  the  assignment,  was  held  to  be  evidence  to  show 
that  the  assignment  was  bond  Jide:  Leiois  v.  Rogers,  4  C,  M.  &  R.  48.  So  de- 
clarations by  a  person  in  a  state  of  insolvency,  tending  to  show  that  he  knew  it, 
are  admissible  to  prove  such  knowledge,  provided  the  fact  of  insolvency  be  proved 
otherwise:   Thomas  v.  Connell,  4  M.  &W.  2i'i7. 

'  It  is  difllcult  to  lay  down  any  precise  rule  as  to  the  case  in  which  declara- 
tions are  admissible  as  part  of  the  res  gestoi  :  Allen  v.  Duncan,  11  Pick.  309. 
Thoy  must  have  been  made  at  the  time  of  the  act  done  which  they  are  supposed 
to  characterize :  Enos  v.  Tattle,  3  Conn.  250  ;  Pool  v.  Bridges,  4  Pick.  378  ;  Rle- 
garl  v.  Ellmakcr,  10  S.  &  R.  27  ;  Seliu  v.  Snyder,  II  S.  &  R.  319  ;  DeardorJ'w. 
Hildebrand,  2  Rawle  226  ;  Evans  v.  Jones,  8  Yerg.  461 ;  Posterns  v.  Posterns,  3 
W.  &  S.  127.  Declarations  of  a  person  in  possession  of  personal  property  with 
respect  to  it  are  admissible  as  part  of  the  res  gestcn :  Oden  v.  Siuhhlejield,  4  Ala. 
40;  Parker  v.  Marstun,  34  Me.  386  ;  Darling  v.  Bryant,  17  Ala.  10;  Brazier  v. 
Burl,  18  Ibid.  201  ;  Perry  v.  Graham,  18  Ibid.  822.  So  in  an  action  against  an 
individual  for  enticing  away  the  servant  of  another,  evidence  of  the  declara- 
tions of  the  servant,  at  the  time  he  left,  as  to  the  motives  which  influenced  him, 


ENTRIES,     ETC.,     CONNECTED    WITH     ACTS.  468 

""Indeed,  wherever  an  entry  or   declaration  reflects  ]io;lit    ^ 

.  .       .  .      [4681 

upon,  or  qualifies,  an  act  which  is  relevant  to  the  matter  in    ^          -• 

issue  and  is  evidence  in  itself,'^  it  becomes  admissible  as  part  of  the 

»  R.  V.  Bliss,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  550.  Thus  in  Wright  v.  Tatham,  5 
CI.  &  F.  670,  on  a  question  as  to  the  competency  of  a  party  to  make  a  will,  let- 
ters written  to  him  by  others,  and  found  many  years  after  their  date  anion  jfst  his 

are  admissible  on  the  same  principle :  Hadleij  v.  Carter,  8  N.  H.  40.  If  the 
declaration  of  a  person  is  in  itself  a  fact  in  a  transaction,  or  is  made  by  him 
while  doing  an  act  and  serves  to  explain  it,  it  is  to  be  received  in  evidence  as  part 
of  the  res  gesta; ;  but  a  recital  of  past  transactions  is  not  admissible,  although 
it  may  have  some  relation  to  the  act  which  the  person  may  be  doing  when  he 
makes  such  declaration  :  Haynes  v.  Ruttcr,  24  Pick.  242  ;  Bank  v.  Clark,  2  Vt. 
308.  Res  gestce  are  the  circumstances,  facts  and  declarations  which  grow  out 
of  the  main  fact,  are  contemporaneous  with  it  and  serve  to  illustrate  its  charac- 
ter :  Carter  v.  Buchanan,  3  Kelley  513;  Smit?i  v.  Webb,  1  Barb.  230;  Holbrook 
V.  Murray,  20  Vt.  525  ;  Plumer  v.  French,  2  Fost.  450 ;  Datvson  v.  Hall,  2  Mich. 
390.  Where  the  plaintiff  relies  upon  proof  that  the  defendant  requested  an  en- 
rolment of  a  vessel  to  be  made  in  a  certain  way,  without  declaring  at  the  time 
the  purpose  for  which  it  was  to  be  so  enrolled,  the  declarations  of  the  defendant 
as  to  the  purpose,  made  preliminary  to  his  request,  and  an  hour  or  two  previous, 
are  competent  testiufony  in  his  behalf,  as  part  of  the  res  gest(V  :  Smith  v.  Smith, 
1  Sandf.  206  ;  Mitcheson  v.  State,  11  Ga.  615.  The  declarations  of  third  persons 
are  not  admissible  in  evidence  as  part  of  the  res  gestce,  unless  they  in  some  way 
elucidate  or  tend  to  give  a  character  to  the  act  which  they  accompany  or  may 
derive  a  degree  of  credit  from  the  fact  itself.  If  they  can  have  no  effect  upon  the 
act  done,  and  derive  no  credit  from  it,  but  depend  for  their  effect  entirely  upon  the 
credit  of  the  party  who  makes  them,  they  are  not  admissible  merely  because 
they  may  have  some  connection  with  the  act  or  relate  to  it :  Wood  v.  Banks,  14 
N.  H.  101  ;  Tomkies  v.  Reynolds,  17  Ala.  109  ;  Thomas  v.  Degraffenreid,  17  Ibid. 
602  ;  Robertson  v.  Smith,  18  Ibid.  220 ;  Lund  v.  Tyngsborough,  9  Cush.  36.  The 
term  res  gestce  can  be  properly  applicable  only  to  transactions  with  which  the 
parties  were  connected  while  the  negotiation  between  them  was  unfinished : 
Wilson  V.  Sherlock,  36  Me.  295;  Battlee  v.  Batchildcr,  39  Ibid.  19.  AVhere  a 
bargain  between  one  of  the  parties  to  a  suit  and  a  third  person,  becomes  a 
material  fact,  what  was  said  by  those  persons  relative  to  the  bargain  at  the  time 
of  making  it,  is  admissible :  Johnson  v.  Elliott,  6  Fost.  67.  The  conduct  and 
exclamations  of  passengers  on  a  railroad  at  the  time  of  an  accident,  though  not 
in  the  presence  of  the  party  receiving  an  injury  may  be  given  in  evidence: 
Railroad  Co.  v.  Fay,  16  111.  558.  Declarations  In  regard  to  the  ownership  of 
property  by  the  party  delivering  the  same  to  a  carrier,  at  the  time  of  delivery, 
are  admissible.  So  also  are  concurrent  acts  and  declarations  of  a  mandatory  in 
explanation  of  the  loss  of  the  property  after  and  about  the  time  of  the  alleged 
loss :  McNabb  v.  Lockhart,  18  Ga.  495.  But  declarations  are  not  admissible  as 
part  of  the  res  gesta',  unless  the  acts  which  they  accompany  are  themselves  rele- 
vant and  material,  Independently  of  what  was  said ;  nor  unless  the  dedlaratlon 
relates  to  those  acts  and  Is  explanatory  of  them  :  Morrill  v.  Foster,  32  N.  H. 
358.     See  ante,  p.  89,  note. 


468  PRIVATE     DOCUMENTS. 

res  gestce,  if  it  be  contemporaneous  with  the  act,  or  so  connected  with 
it  as  to  render  it  part  of  one  continuous  transaction. '' 

In  the  case  of  Aveson  v.  Lord  Kinnaird,"  on  an  insurance  effected 
on  the  life  of  the  wife,  the  question  was,  whether  she  was  in  an  in- 
surable state  at  the  time ;  and  declarations  by  her,  made  a  few  days 
after  the  certificate  of  her  health  had  been  obtained,  as  to  the  state 
of  her  health  at  the  time  when  the  certificate  was  obtained,  and  down 
to  the  time  of  the  conversation,  were  *held  to  be  admissible 
•-  J  in  evidence,  with  a  view  to  show  her  own  opinion  as  to  the 
state  of  her  health,  as  well  as  with  a  view  to  contradict  the  evidence 
of  the  surgeon  who,  having  been  called  as  a  witness  for  the  plaintiff, 
had  stated  that  he  considered  her  to  be  in  good  health,  but  that  he 
had  formed  this  opinion  from  the  answers  she  had  given  to  his  in- 
quiries. In  an  action  of  trespass,  what  the  wife  said  immediately  on 
receiving  the  injury,  and  before  she  had  time  to  devise  anything  for 
her  own  advantage,  is  also  evidence.'^  So  is  the  complaint  made  by 
a  person  in  case  of  rape,  or  an  attempt  to  commit  a  rape,  immediately 
after  the  injury.'' 

papers  were  held  inadmissible  -without  proof  that  he  himself  acted  upon  them  ; 
because  the  fact  of  writinc;  the  letters  was  not  a  material  or  relevant  fact,  and 
there  was  none  other  which  they  qualified  or  explained,  s.  c,  7  Ad.  &  E.  (34  E. 
C.  L.  R.)  313. 

•^  Thus,  where  the  plaintiff  had  received  in  the  lifetime  of  the  owner  certain 
notes  as  an  alleged  gift,  and  after  the  death  of  the  party,  the  defendant  having 
inquired  as  to  what  property  of  the  deceased  the  plaintifi"  possessed,  she  volun- 
tarily produced  the  notes,  stating  at  the  time  how  she  had  received  them,  and  the 
defendant  had  refused  to  deliver  them  back ;  held  that  her  account,  as  part  of 
the  res  gestce^  was  admissible  to  go  to  the  jury  as  to  the  way  she  became  possessed, 
which,  with  other  circumstances,  might  induce  the  jury  to  believe  it  correct  or 
not :  Hayslip  v.  Gymer,  1  Ad.  &  E.  (28  E.  C.  L.  K.)  162 ;  and  3  N.  &  M.  (28  E. 
C.  L.  R.)  479.  The  declaration  of  the  defendant's  wife  in  delivering  money  to 
a  witness  to  be  paid  over  to  the  plaintiff  in  payment  for  sheep,  is  evidence  in  an 
action  for  the  price:  Walters  v.  Lewis,  7  Car.  &  P.  (32  E.  C.  L.  R.)  344;  and 
see  R.  V.  Hall,  8  Car.  &  P.  (34  E.  C.  L.  R.)  358.  That  the  declaration  or  entry 
need  not  be  contemporaneous,  if  there  be  such  connecting  circumstances  as  to 
render  it  part  of  the  res  gestoi:  see  Rawson  v.  Ilaigh,  2  Bing.  (9  E.  C.  L.  R.) 
104;  Ridley  v.  Gyde,  9  Bing.  (23  E.  C.  L.  R.)  349;  Rouch  v.  Great  Westean 
Railway  Company,  I  Q.  B.  (41  E.  C.  L.  R.)  50. 

«  6  East  188  ;  and  R.  v.  Johnson,  2  Car.  &  K.  (Gl  E.  C.  L.  R.)  354  ;  R.  v.  Gut- 
tridge,  9  Car.  &  P.  (38  E.  C.  L.  R.)  472;  per  Parke,  B. ;  and  see  Gardner 
Peerage  case. 

^  Thompson  and  his  Wife  v.  Trevanion,  Skin.  402.  So  upon  an  indictment 
for  manslaughter,  a  statement  by  the  deceased  as  to  how  the  accident  happened, 
made  immediately  after  it  occurred,  was  held  admissible  :  R.  v.  Foster,  6  C.  & 
P.  (25  E.  C.  L.  R.)  325. 

•  Brazier's  case,  1  East  P.  C.  444 ;  R.  v.  Clarke,  2  Stark.  C.  (3  E.  C.  L.  R.) 


ENTRIES,     ETC.,     CONNECTED     WITH     ACTS.  469 

To  this  head  also  the  admissibility  of  declarations  by  tenants  has 
sometimes  been  referred,  and  it  seems  that  such  declarations  are 
clearly  referrable  to  this  principle  in  all  cases  where  the  nature  and 
quality  of  an  act  of  ownership  or  dominion,  or  of  the  possession,  is 
questioned  and  requires  explanation,  or  when  the  nature  and  quality 
of  the  possession  are  questioned,  and  the  contemporary  declaration 
of  the  party  doing  the  act,  or  of  the  party  in  possession  serves  to 
elucidate  and  explain  the  nature  and  quality  of  such  act  or  posses- 
sion. 

The  application  of  the  general  principle  already  ^announced 
stands  thus  :  In  the  absence  of  direct  documentary  proof  of  ^  -^ 
the  title  to  lands,  or  to  an  easement  of  right  arising  out  of  lands, 
acts  of  possession  and  enjoyment  must  be  resorted  to  as  indirect  evi- 
dence of  the  right.^  Where  such  possession  and  enjoyment  have  been 
of  long  continuance,  the  law  in  many  instances  makes  that  possession 
and  enjoyment  conclusive  as  to  the  right,  and  in  all  cases  renders 
such  evidence  admissible,  on  the  reasonable  presumption  that  unless 
those  acts  and  possession  had  been  founded  in  right,  they  would  have 
been  resisted  by  him  whose  right  was  violated.  But  the  admission 
of  such  acts  of  possession  and  enjoyment  in  evidence  frequently 
introduces  a  question  as  to  their  nature  and  quality,  for  on  this  must 
depend  the  question,  whether  they  furnish  any  inference  of  acqui- 
escence in  an  adverse  enjoyment.  This  again  must  be  decided  by 
the  mode  and  circumstances  of  enjoyment,  and  for  this  purpose  the 
contemporary  declarations  of  the  parties  concerned  are  necessary 
and  essential   evidence.     If,  for  instance,  the  question  be  whether 

A.  has  a  right  of  way  to  his  house  over  the  close  of  B.,  and  evi- 
dence be  given  that  on  a  particular  occasion  the  occupier  of  ^.'s 

24.^  ;  Trelawny  v.  Colman^  Ibid.  191.  The  fact  of  a  complaint  being  made  is 
evidence  to  confirm  the  prosecutrix's  story,  but  the  particulars  are  not  evidence ; 
and  they  properly  cannot  be  elicited  for  the  prosecution :  see  R.  v.  Megson,  9 
Car.  &  P.  (38  E.  C.  L.  R.)  420;  R.  v.  Guttridge,  9  Car.  &  P.  (38  E.  C.  L.  R.) 
472 ;  R.  V.  Walker,  2  M.  &  Rob.  212  ;  and  see  post,  Vol.  II.,  tit.  Rape.  On  an 
indictment  for  shooting  at  the  prosecutor,  Patteson,  J.,  held  that  evidence  was 
admissible  to  show  that  the  prosecutor,  immediately  after  the  injury,  had  made 
communication  of  the  fact  to  another,  but  that  the  particulars  could  not  be 
given  in  evidence :  Rex  v.  Ridsdale,  York  Spring  Assizes,  1837. 

'  Act  of  ownership  can  only  prove  that  which  would  be  better  proved  by  title- 
deeds  or  possession.  Acts  of  ownership,  where  submitted  to,  are  analogous  to 
admissions  or  declarations,  by  the  party  submitting  to  them,  that  the  party  ex 
ercising  them  has  a  right  to  do  so,  and  that  he  is  therefore  the  owner  of  the 
property  upon  which  they  are  exercised :  per  Best,  J.,  in  Hollis  v.  Goldfinch,  1 

B.  &  C.  (8  E.  C,  L.  R.)  205. 


470  PRIVATE     DOCUMENTS. 

house  used  the  close  as  a  Avay,  the  whole  force  and  efficacy  of  the 
evidence  may  depend  on  what  was  said  at  the  time.  If,  on  the  one 
hand,  it  were  proved  that  ac  that  time  the  occupier  of  A.'s  house 
asked  the  permission  of  the  owner  or  occupier  of  the  close  to  use 
the  way,  the  fact,  instead  of  affording  evidence  of  an  adverse  right, 
would  be  strong  to  negative  the  right ;  if,  on  the  other  hand,  the 
right  to  use  was  asserted  and  acquiesced  in,  the  fact  would  afford 
evidence  of  acquiescence  on  the  one  hand,  and  of  right  on  the  other. 
The  case  of  Doe  dem.  *Aimian  v.  Pettet^  may    be  cited  in 

r*47ii  • 

•-         -J    illustration  of  these  remarks. 

Human  was  the  purchaser  of  lands.  After  his  death,  Avhich  was 
thirty  years  ago,  his  widow  continued  in  possession  for  more  than 
twenty  years,  and  died ;  the  question  between  the  heir-at-law  of  the 
husband  and  the  heir-at-law  of  the  w^ife  was,  whether  the  possession 
by  the  wife  was  an  adverse  possession  ;  and  it  was  held,  that  her 
declarations  during  her  possession  that  she  held  for  her  life  only, 
and  that  after  her  death  the  premises  would  go  to  her  husband's 
heir-at-law,  were  admissible  to  rebut  the  Statute  of  Limitations,  21 
Jac.  I.,  c.  16.  They  were  not  used  to  show  the  quantum  of  her 
estate,  but  only  to  explain  the  nature  of  her  possession. 

B  5  B.  &  Aid.  (7  E.  C.  L.  R.)  223  ;  and  see  Came  v.  Niclioll,  1  Bing.  N.  C. 
(27  E.  C.  L.  R.)  430  ;  Doe  dem.  Daniel  v.  Cotdthred,  7  Ad.  &  E.  (34  E.  C.  L.  R.) 
235.  In  the  case  of  Doe  v.  Eickarby,  5  Esp,  C.  4,  which  was  an  action  of  eject- 
ment on  an  alleged  forfeiture  of  a  lease  for  breach  of  a  covenant  not  to  injure  or 
underlet,  by  imderletting ;  it  appeared,  that  after  the  house  had  been  for  some 
time  empty,  Mrs.  Lutlimam  was  found  in  possession  ;  and  it  was  held,  that  the 
plaintiff  was  at  liberty  to  prove  that  a  witness  on  his  behalf  bad  inquii-ed  of  Mrs. 
Luthmam  in  what  way  she  occupied  it,  and  to  give  her  answer  in  evidence.  This 
case,  however,  goes  to  a  great  length  :  it  is  diflBcult  to  say  that  such  an  answer 
can  be  admissible  as  original  evidence  during  the  life  of  the  declarant,  except 
on  the  ground  that  she  was  the  agent  of  the  party  to  be  affected,  or  that  the 
declaration  was  evidence,  as  accompanying  the  fact  of  possession.  But  there  was 
no  sufficient  proof  of  agency  to  let  in  such  declaration,  and  the  declfiration  was 
not  admitted  as  explanatory  evidence  of  a  contemporaneous  act,  but  rather  to 
prove  a  by-gone  fact,  the  nature  and  terms  of  the  original  entry.  In  some  in- 
stances, the  admissibility  of  declarations  by  former  occupiers,  on  the  ground  that 
they  were  against  the  interest  of  the  declarants  at  the  time,  has  been  carried  to 
a  great  length  ;  see  Walker  v.  Broadstoclc,  1  Esp.  C.  458.  Upon  the  trial  of  an 
indictment  for  obstructing  a  highway,  the  question  was,  whether  the  road  was 
public  or  private  ;  and  it  was  held,  that  the  declaration  of  a  deceased  occupier 
at  the  time  of  jihinting  an  alleged  boundary  willow,  was  inadmissible,  either  as 
a  declaration  accompanying  an  act,  or  as  contrary  to  the  party's  interest,  or  as 
evidence  of  reputation :  Rej.  v.  Bliss,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  550;  and  see 
Tickle  v.  Brown,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  3(19. 


SURVEYS  —  MAPS  —  WHEN    ADMISSIBLE.  472 

*Upon  similar  grounds,  title-deeds  and  testaments  are  r*  i-ro"! 
admissible  evidence  of  the  rights  of  property.'' 

Even  modern  deeds  are  also  evidence  to  show  the  title  of  a  party 
to  a  particular  estate,  when  a  sufficient  ground  has  been  laid  by  proof 
of  the  ownership  of  the  party  from  whom  the  title  is  derived.  Thus 
it  is  every-day's  practice  to  prove  the  title  of  A.  B.  to  an  estate,  by 
proof  of  the  execution  of  a  conveyance  by  0.  D.,  a  former  owner  in 
possession  of  the  estate.  In  such  cases  the  evidence  does  not  come 
within  the  objection  of  res  mter  alios ;  the  deeds  are  nothing  more 
than  solemn  declarations  and  admissions  of  the  parties,  accompany- 
ing and  evidencing  the  nature  of  the  act  of  transfer,  and  do  not 
affect  or  conclude  the  rights  of  any  stranger,  any  more  than  the 
mere  fact  of  delivering  the  possession  would  conclude  him.  It  is 
evidence  of  the  same  nature,  as  if  a  plaintiff  in  trover  were  to  prove 
his  ownership  of  a  horse,  or  other  chattel,  by  showing  that  he  bought 
him  for  a  particular  sum  at  a  fair.  Such  evidence,  as  a  mere  fact, 
and  part  of  the  res  gestce,  is  admissible  against  all  the  world  ;  it  ope- 
rates to  the  conclusion  of  no  one  without  his  assent,  but  merely  so 
far  as  in  its  own  nature  it  affects  the  transaction  itself.  For  its 
force  and  effect,  the  evidence  depends  entirely  upon  its  connection 
with  the  acts  of  ownership  and  possession  ;  proof  of  the  execution 
of  deeds  by  parties  wholly  unconnected  with  the  estate  would  avail 
nothing  to  prove  a  title. 

Maps  and  surveys  of  estates  are  also  evidence  to  show  the  extent 
of  a  man's  estate,  when  it  appears  that  they  have  been  made  with 
the  privity  and  consent  of  the  owners  of  *the  adjoining  r^j^yo-i 
lands.  A.  being  seised  of  the  manors  B.  and  C,  durins;  his 
seisin  caused  a  survey  to  be  taken  of  B.,  which  was  afterwards  con- 
veyed to  E.  ;  and  upon  a  dispute  between  the  lords  of  B.  and  C,  it 
was  held  that  the  survey  was  admissible  in  evidence.' 

•*  Supra,  p.  64,  65,  186  ;  and  see  the  cases  tjiere  cited.  A  counterpart  of  a 
feoffment  by  a  corporation,  produced  from  their  muniments,  without  proof  of 
rent  ever  having  been  received  in  respect  of  the  property,  is  inadmissible  :  Lan- 
cum  V.  Lovell,  6  C.  &  P.  (25  E.  C.  L.  R.)  441  ;  9  Bing.  (23  E.  C.  L.  R.)  465.  The 
defendant  justified  breaking  floodgates,  as  lessee  of  the  Bishop  of  W. ;  old  leases 
were  produced  from  the  registry,  and  admitted  :  Wakeman  v.  West,  7  Car.  &  P. 
(32  E.  C.  L.  R.)  479. 

'  Bridgman  v.  Jennings,  1  Lord  Raym.  734.  The  only  case,  it  is  said,  where 
a  map  is  receivable  in  evidence,  is  where  at  the  time  it  was  made  the  whole 
property  belonged  to  the  person  from  whom  both  parties  claim  :  Doe  v.  Lakin, 
7  C.  &  P.  (32  E.  C.  L.  R.)  481.  In  an  action  for  breaking  down  floodgates,  a 
map  of  the  owner's  and  of  adjoining  lands  is  not  admissible  to  show  the  course 


473  PRIVATE    DOCUMENTS. 

But  it  is  clear  that  no  entry  or  survey  taken  by  an  owner  would 
be  evidence  either  for  himself,  or  for  one  who  claimed  through  him, 
against  a  party  who  did  not  claim  in  privity,  since  it  might  encour- 
age persons  to  include  in  surveys  more  than  belonged  to  them  ;''  and, 
therefore,  survey-books  of  a  manor,  although  ancient,  unless  signed 
by  the  tenants,  or  unless  they  appear  to  have  been  made  at  a  court 
of  survey,  are  not  evidence  ;  they  are  mere  private  memorials.^ 

So  it  has  been  said,  that  an  old  map  of  lands  has  been  allowed  in 
evidence,  where  it  came  along  with  the  writings,  and  aorreed  with 
the  boundaries  adjusted  in  an  ancient  purchase.™  It  does  not  clearly 
appear  under  what  circumstances  this  old  map  was  held  to  be  evi- 
dence, but  it  seems  that  one  ingredient  essential  to  its  admissibility 
was  its  agreement  with  boundaries  as  adjusted  in  an  ancient  purchase, 
that  is  with  some  other  instrument ;  and  the  term  adjusted  seems  to 
imply  some  privity  on  the  part  of  the  owners  of  adjoining  property, 
if  the  vendor  was  not  himself  the  owner.  A  map  annexed  to  a  deed 
seems  to  stand  on  the  same  footing  as  the  description  contained  in 
the  deed  itself. 

*It  is  an  established  principle  of  evidence,  that  if  a  party 
L  J  who  has  peculiar  knowledge  of  the  fact,  by  his  written  entry, 
or  even  declaration  concerning  it,  discharges  another  upon  whom  he 
would  otherwise  have  a  claim,  or  charges  himself,  such  entry  is  admis- 
sible evidence  of  the  fact  after  the  death"  of  the  party."  ^ 

of  the  stream  to  the  plaintiff's  mill :  Wakeman  v.  West,  7  C,  &  P.  (32  E.  C.  L. 
R.)  479. 

"  Str.  95 ;  1  Lord  Raym.  734 ;  Oiitram  v.  Morewood,  5  T.  R.  123. 

'  12  Vin.  Abr.  90,  pi.  12;  per  Bacon,  Exon,  Summ.  1719. 

"^  Gilb.  Law  of  Ev.  78. 

°  Where  entries  were  made  against  the  interest  of  a  party  who  had  quitted 
the  kingdom,  there  being  charges  of  a  criminal  nature  against  him,  but  was 
still  living,  it  was  held  that  such  entries  could  not  be  read:  Stephen  v.  Gwenap, 
1  M.  &Rob.  I'iO;  and  see  Smith  v.  Whittingham,  6  C.  &  P.  (25  E.  C.  L.  R.)  78 ; 
Spargo  v.  Brown,  9  B.  &  C.  (17  E.  C.  L.  R.)  935 ;  Fursdon  v.  Clogg,  10  M.  & 
W.  572;  and  Sussex  Peerage  case,  11  CI.  &  F.  85,  p.  465.  Parol  evidence  is 
admissible  of  a  declaration  by  a  devisee  that  she  was  merely  a  trustee  :  Strode 
V.  Winchester,  1  Dick.  397. 

°  Iligkam  v.  Ridgway,  10  East  109,  infra.  It  has  been  said  that  an  additional 
circumstance  is  necessary,  viz.,  that  the  party  who  made  the  entry  might  have 
been  examined  as  to  it,  had  he  been  living:  per  Bayley,  J.,  in  Ilighamw.  Ridg- 
way. It  is,  however,  observable  that  in  that  case  three  of  the  judges  lay  down 
the  rule  without  this  qualification  ;  and  in  the  case  of  Short  v.  Lee,  2  Jac.  & 

'  Chase  v.  Smith,  5Vt.  558;  Thompson  v.  Stevens,  2  N.  &  McC.  493.  If  made 
in  the  usual  course  of  the  business  or  duty  of  the  party  making  the  entry  it  is 


DECLARATIONS,     ETC.,     AGAINST     INTEREST.  474 

Thus,  upon  a  trial  at  bar,  where  the  question  was,  whether  a  sur- 
render of  the  mother's  estate  for  life  had  been  made  when  the  son 
suffered  a  common  recovery,  the  court  admitted  in  evidence  the  debt- 
book  of  an  attorney,  (deceased,)  in  which  he  had  made  charges  for 
suffering  the  recovery,  and  for  drawing  and  engrossing  a  surrender 
of  the  mother,  which  were  therein  acknowledged  to  have  been  ^jaid ; 
and  the  court  held,  that  this  was  a  material  circumstance  upon  the  in- 
quiry into  the  reasonableness  of  presuming  a  surrender,  and  could 
not  be  suspected  to  be  done  for  that  purpose ;  and  that  since  the 

attorney  was  dead  this  was  the  best  evidence.^     So  in   *thc    ^    ,„^^ 

r  4751 
case  of  Iligliam  v.  HidgwmJ^  it  was  held,  that  an  entry  made    "-         ^ 

Walker  464,  the  Master  of  the  Rolls  held  that  an  entry  by  a  deceased  person 
was  admissible,  although  he  could  not,  in  bis  lifetime,  have  been  examined  to 
the  fact;  and  this  is  certainly  most  consistent  with  the  principle  upon  which 
such  evidence  is  admitted.  Hence  the  Court  of  Exchequer  negatived  any  such 
qualification  in  the  case :   Gleadoio  v.  Aikin,  1  Cr.  &  M.  410. 

P  Warren  v.  Greenville,  Str.  1129.  Note,  this  was  forty  years  after  the  time 
of  the  surrender,  and  the  Court  said  they  would  have  presumed  a  surrender 
after  such  a  length  of  time,  without  this  additional  evidence.  In  Goodtitle  v. 
Duke  of  Chandos,  2  Burr.  1072,  Lord  Mansfield  says  that  the  Court  did  rely 
upon  the  enti-y  ;  but  he  also  states  from  his  ovrn  note,  that  the  Court  said  that 
after  forty  years  they  would,  without  any  other  circumstances,  presume  a  con- 
ditional surrender ;  see  also  the  last  preceding  note.  In  Doe  v.  Wright,  Lan- 
caster Summer  Assizes,  1836,  Coleridge,  J.,  admitted  a  bill  of  costs  by  an 
attorney,  stating  facts  and  business  done  which  had  been  paid,  on  the  same 
footing  as  original  entries  in  the  book. 

*i  10  East  109;  2  Smith  L.  C.  182.  The  evidence  seems  to  have  been  received 
in  this  case  principally  upon  the  ground  that  the  entry  was  made  of  a  fact 
within  the  peculiar  knowledge  of  the  party,  against  his  interest.  In  Doe  dem. 
Gallop  V.  Vowles,  1  M.  &  Rob.  261,  in  order  to  show  that  the  mortgagee  had 
done  some  repairs  to  certain  premises,  with  a  view  to  prove  that  the  defendant 
had  not  had  an  adverse  possession,  the  lessor  of  the  plaintiff  produced  a  bill  for 
the  repairs,  with  a  receipt  for  the  amount  of  it  in  the  handwriting  of  a  deceased 
carpenter,  which  had  been  found  among  the  mortgagee's  papers;  but  Littledale, 
J.,  rejected  it  as  evidence  of  the  work  having  been  done,  inasmuch  as  the  paper 
itself  was  the  only  evidence  that  the  demand  ever  existed,  and  that  the  founda- 

not  necessary  that  it  should  be  against  his  interest:  Augusta  v,  Wiiidson,  1 
Appl.  317  ;  Brewster  v.  Doane,  2  Hill  537 ;  Gale  v.  Norris,  2  McLean  469  ;  Ken- 
dall V.  Field,  2  Shepl.  30 ;  Doe  v.  Sawyer,  28  Me.  463 ;  Thompson  v.  Porter,  4 
Strobb.  Eq,  58  ;  Arms  v.  Middleton,  2  Barb.  571.  Entries  by  deceased  clerk  of 
notary  are  admissible  to  prove  demand  and  notice :  Gawtry  v.  Doane,  48  Barb. 
148.  Sworn  entries  in  books  in  the  regular  course  of  business  are  admissible : 
State  V.  Shinhorn,  46  N.  H.  497.  Enti-ies  by  a  person  against  his  own  interest 
with  others  are  admissible  after  his  decease  :  Gaines  v.  Gaines,  39  Ga.  68 ;  Field 
V.  Boynton,  33  Ibid.  239  ;    Ward  v.  Leitch,  30  Md.  326. 


475  PRIVATE     DOCUMENTS. 

by  a  man-midwife  in  his  book  of  having  delivered  a  woman  of  a 
chiki  on  a  particular  day,  referring  to  his  ledger  in  which  he  had 
made  a  charge  for  his  attendance,  which  was  marked  as  paid,  was 
evidence  upon  the  trial  of  an  issue  as  to  the  age  of  such  child  at 
the  time  of  his  afterwards  suffering  a  recovery. 

It  was  held,  in  the  case  of  Doe  v.  Mobson,^  that  entries  of  charges 

made  by  an  attorney  in  his  books,  *showing  the  time  when  a 

L         -I    lease  prepared  for  a  client  of  his  was  executed,  which  charges 

it  appeared  had  been  paid,  were  evidence  after  the  attorney's  death 

to  show  the  time  of  the  execution,  which  was  a  material  fact  in  issue. 

By  a  promissory  note  A.,  B.  and  C.  jointly  promised  D.  to  pay 
him  X300,  and  interest.  B.  paid  D.  ^280  on  account  of  the  note, 
and  D.  endorsed  on  it,  "  Received  of  B.  £280  on  account  of  the 
within  note;  the  £300  having  been  originally  advanced  to  A.''  B. 
having  afterwards  paid  the  whole  amount  sued  C.  as  a  co-surety,  for 
contribution,  and  it  was  considered  that  the  endorsement,  after  D.'s 
death,  was  evidence  for  the  jury,  not  only  of  the  payment  of  the 
£280.  but  that  it  was  advanced  to  A.  as  principal.^ 

An  entry  by  a  rector  of  his  receipt  of  tithes  is  evidence  for  the 
successor ;  for  the  entry  could  not  have  been  of  any  benefit  to  him- 
self.' Lord  Kenyon,  however,  considered  this  as  an  excepted  case, 
since   in      gcneraa  man's  private  entry  cannot  affect  the  rights  of 

tion  for  it,  as  in  Higham  v.  Ridgway,  should  have  been  laid  by  showing  the 
work  to  have  been  done ;  but  in  R.  v.  Inhabitants  of  Lower  Heyford,  Gloucester 
Summ.  Assizes,  1840,  2  Smith's  L.  C.  194,  Parke,  B.,  denied  the  existence  of 
this  distinction,  and  admitted  the  book  of  a  deceased  mason,  containing  charges 
for  repairing  a  bridge  marked  as  paid,  as  good  evidence  of  such  repairs  without 
further  proof;  and  see  Doe  v.  Burton,  9  Car.  &  P.  (38  E.  C.  L.  R.)  254. 

*■  15  East  32.  So  to  show  payment  of  mortgage  money  by  mortgagor  by 
whom  he  was  employed :   Clarke  v.  Wilmot,  1  Y.  &  C.  53. 

*  Davies  v.  Humphreys,  6  M.  &  W.  153. 

*  5  T.  R.  123;  Bunb.  46  ;  2  Ves.  43  ;  and  was  against  his  interest,  as  it  would 
have  been  evidence  to  discharge  the  parishioners,  ^^er  Plumer,  M.  R.,  2  Jac.  & 
W.  475.  So  in  a  suit  for  tithes  by  the  lessee  of  an  ecclesiastical  corporation  ag- 
gregate, to  whom  the  rectory  belonged,  ancient  documents  in  their  possession, 
purporting  to  be  accounts  furnished  by  some  of  their  members  employed  to  col- 
lect the  tithes,  and  appearing  to  be  offered  and  settled,  are  admissible  in  evi- 
dence :  Short  v.  Lee,  2  Jac.  &  W.  464.  An  entry  by  a  deceased  rector  is  also 
evidence  by  way  of  admission  against  a  successor.  An  ancient  document  signed 
by  the  rector,  and  headed,  "  notification  of  the  tithes  of  the  parish,"  although 
not  coming  out  of  the  proper  repository  of  a  terrier,  was  held  to  be  admissible 
evidence  against  a  succeeding  rector,  as  the  admission  of  one  of  his  predecessors, 
and  upon  tlic  principle  of  a  receipt:  Maddison  v.  Nuttall,  6  Bing.  (19  E.  C.  L. 
Pt.)  22G. 


ENTRIES  BY  DECEASED  PERSONS,  ETC.       476 

third  persons ;"  and  therefore  in  Outram  v.  Moorcwood^^  wliere  the 
question  was  whether  a  particular  close  was  part  of  an  estate  which 
formerly  belonged  to  Sir  J.  Zoueh,  it  was  held,  that  entries  of  the 
receipt  of  rents  made  by  one  from  whom  the  ^defendant  de-  r*  177-1 
rived  his  title  to  the  rent  of  this  close,  but  nothing  more, 
was  not  evidence  for  the  defendant  in  order  to  prove  the  identity  of 
the  close  and  to  establish  his  title  to  the  coals,  on  the  ground  that 
the  entries  were  no  more  than  the  private  memoranda  of  the  party, 
not  upon  oath,  which  ought  not  to  bind  third  persons  ;  and  it  was 
distinguishable  from  the  case  of  Barry  v.  Bebbington,  since  there 
the  stcAvard  charged  himself  with  the  receipt  of  the  money.  It  ap- 
pears therefore  to  be  clear,  that  a  man's  own  private  entry  as  to  his 
own  rights,  which  admits  no  liability  to  another,  is  not  evidence 
either  for  himself  or  those  who  claim  under  him.  The  case  of  an 
entry  of  the  receipt  of  tithes  by  the  rector  stands  upon  very  peculiar 
grounds ;  he  has  no  personal  interest  in  making  the  entry  with  a 
view  to  any  claim  made  by  himself,  since  the  entry  would  not  be  evi- 
dence for  him  ;  and  the  incumbent  for  the  time  being,  and  not  his 
heir  or  personal  representative,  would  afterwards  derive  benefit  from 
such  entry. 

Lord  Hardwicke  observed,  that  it  was  going  a  great  way  to  admit 
the  books  of  a  deceased  rector  as  evidence  for  his  successor,^  but  that 
it  had  been  allowed,  because  the  rector  knew  that  the  entry  could  not 
benefit  either  himself  or  his  representative,  who  had  nothing  to  do 
with  the  living.''  The  admissibility  of  such  evidence  seems  to  rest 
upon  the  principles*  already  announced. 

*In   the  case  of  Searle  v.  Lord  Barrinqton}  the  court  is    ^    ,„^^ 

r*4781 
said  to  have  extended  this  principle  so  far  as  to  hold,  that    ^         -* 

°  5  T.  R.  123.  ^  5  T.  R.  121. 

y  2  Ves.  43 ;  and  see  Illingworth  v.  Leigh,  4  Gwill.  1618  ;  Woodnoth  v.  Lord 
Cobham,  2  Gwill.  653. 

^  Such  evidence  has,  however,  been  received  in  favor  of  his  successor,  wliere 
the  entries  have  been  made  by  an  impropriate  rector,  although  there  the  party 
who  made  the  entries  might  benefit  his  own  inheritance:  4  Gwill.  1618;  2 Gwill. 
653  ;  Bun.  180 ;  but  see  Le  Gross  v.  Loi^emoor,  2  Gwill.  529  ;  Perigal  v.  Nichol- 
son, 1  Wightw.  63.  Lord  Kenyon's  observation,  Outram  v.  Morewood,  5  T.  R. 
123.  No  propi'ietor  or  corporation  sole,  except  a  rector  or  vicar,  can  make  such 
evidence  for  his  successors,  and  even  in  those  cases  the  liberty  has  been  allowed 
with  regret :  Short  v.  Lee,  2  Jac.  &  W.  464. 

^  Su2)ra,  pp.  64,  65  ;  and  see  Lord  Ellenborough's  observations  in  Doe  v.  Eaw- 
lins,  7  East  279. 

^  Str.  826.  The  bond  was  dated  June  24,  1697 ;  the  endorsement  of  interest 
on  the  bond,  under  the  hand  of  the  obligee,  was  dated  in  1707,  being  three  years 


478  PRIVATE    DOCUMENTS. 

in  an  action  upon  a  bond,  a  receipt  for  interest  endorsed  upon  it  by 
the  obligee  himself,  is  evidence  to  go  to  a  jury  to  rebut  the  presump- 
tion of  payment  arising  from  lapse  of  time.  If  this  case  is  to  be 
taken  as  an  authority  for  the  general  position,  that  an  endorsement 
r*47<^n  ^^  ^^^®  receipt  *of  interest  on  a  bond  bearing  date  within  the 
space  of  twenty  years  from  the  date  of  the  bond,  shall  in 
itself,  and  without  any  proof  that  it  was  actually  made  within  that 
space  of  time,  or  with  the  privity  of  the  obligor,  be  evidence  to  rebut 
the  presumption  of  payment,  it  seems  to  be  difficult  to  support  it 
upon  principle ;  for  it  amounts  to  this,  that  in  this  particular  case 
the  party  shall  have  an  opportunity  of  making  evidence  in  his  own 
closet,  in  order  to  rebut  a  presumption  which  would  otherwise  arise 
against  him.  If  this  be  so,  the  case  must  be  regarded  as  anomalous, 
and  as  an  exception  to  the  plain  fundamental  rule,  that  a  man  shall 
not  be  permitted  to  make  evidence   for  himself.*'     If,  on   the  other 

before  the  death  of  the  obligor ;  and  the  cause  was  first  tried  Trin.  1724,  Pratt, 
C.  J.,  was  of  opinion  that  this  endorsement  was  not  evidence  ;  but  the  three  other 
judges  were  of  opinion  that  it  ought  to  have  been  left  to  the  jury,  for  they 
might  have  reason  to  believe  that  it  was  done  with  the  privity  of  the  obligor  ; 
because  it  was  the  constant  practice  for  the  obligee  to  endorse  the  payment  of 
interest,  and  that  for  the  sake  of  the  obligor,  who  is  safer  by  such  an  endorse- 
ment than  by  taking  a  loose  receipt.  Upon  a  second  trial,  Lord  Raymond,  C. 
J.,  admitted  the  evidence,  and  a  bill  of  exceptions  was  tendered,  and  after  judg- 
ment in  the  King's  Bench  for  the  plaintiif,  a  writ  of  error  was  brought  in  the 
Exchequer  Chamber  ;  and  upon  argument,  five  of  the  judges  were  of  opinion  to 
affirm,  and  two  to  reverse,  the  judgment.  The  judgment  was  afterwards  affirmed 
in  the  House  of  Lords.  In  Barnes  v.  Ransom,  1  Barn.  432,  a  similar  endorse- 
ment seems  to  have  been  admitted,  though  made  after  the  presumption  of  pay- 
ment had  taken  place.  See  Mr.  Nolan's  note  to  the  former  case,  in  his  edit,  of 
Strange  826.  In  a  copy  of  select  cases  of  evidence,  there  referred  to,  it  is  stated, 
that  at  the  sittings  after  Michaelmas  Term  at  Westminster,  6  Geo.  III.,  Lord 
Camden  said  that  he  was  never  much  pleased  with  the  determination  of  Searle 
V.  Lo7-d  Barrington ;  however,  he  said,  it  was  law:  see  Vol.  II.,  tit.  Bond.  In 
Gleadow  v.  AtJcin,  1  Cr.  &  M.  428,  an  action  on  a  bond,  there  was  proof  of  pay- 
ment of  interest  to  a  third  person,  and  to  connect  that  with  the  bond  an  endorse- 
ment on  the  bond  by  the  obligee,  stating  that  the  bond  was  for  trust  money  for 
that  third  person,  of  even  date  with  the  bond,  was  held  to  be  admissible.  So  an 
endorsement  of  the  receipt  of  interest  on  a  promissory  note  made  by  the  payee, 
since  deceased,  was  held  admissible  to  repel  the  Statute  of  Limitations:  Gale  v. 
C'apern,  1  Ad.  &  E,  (28  E.  C.  L,  R.)  102.  In  consequence  of  these  decisions  the 
stat.  9  Geo.  IV.  c.  14,  s.  3,  provided,  that  no  such  endorsement  made  by  or  on 
account  of  the  party  to  whom  such  payment  shall  be  made,  shall  take  the  case 
out  of  the  Statute  of  Limitations.  See  Vol.  II.,  tit.  Limitations;  and  tit.  Bond. 
"  See  Lord  Ilardwicke's  observations  in  the  case  of  Gli/n  v.  I'he  Bank  of  Eng- 
land, 2  Vcs.  43,  and  Lord  Kcnyon's,  5  T.  R.  123  ;  and  Lord  Ellenborough's,  in 
Jiose  V.  Bnjant,  Camp.  323.  • 


ENTRIES  BY  DECEASED  PERSONS,  ETC.       479 

hand,  this  further  limitation  is  to  be  applied  to  the  reception  of  such 
evidence,  that  reasonable  proof  shall  be  adduced  to  show  that  the 
endorsement  existed  before  the  presumption  of  satisfaction  had 
arisen,  the  doctrine  seems  to  be  more  consonant  v?ith  the  principle 
above  stated  ;  a  presumption  arises  that  the  obligee  would  not  falsely 
and  wantonly  make  an  endorsement  prejudicial  to  his  own  interest  at 
the  time,**  from  which  he  could  derive  no  benefit.  It  seems  to  be  clear, 
at  all  events,  that  such  evidence  would  be  inadmissible,  if  tiie  endorse- 
ment appeared  to  have  been  made  after  the  presumption  had  arisen.® 
Entries  by  which  receivers,  stewards,  bailiffs,  and  other  agents 
charge^  themselves  with  the  receipt  of  money  are  *in  general  r^^inn-i 
admissible  in  evidence  to  prove  the  facts  entered  after  they 
are  dead,  for  (as  it  is  said)  it  is  reasonable  to  be  presumed  that  a  man 
would  not  wantonly  charge  himself  with  any  responsibility;^  and 
evidence  to  show  that  the  party  making  the  entry  had  knowledge  of 
the  fact  is  unnecessary.^ 

*  In  the  case  of  Glyn  v.  The  Bank  of  England,  2  Ves.  42,  Lord  Ilardwicke 
said  (of  this  case)  he  took  it  that  the  endorsements  were  made  and  bore  date 
within  twenty  years.  And  in  Turner  v.  Crisp,  2  Str.  827,  it  was  said,  the  en- 
dorsement appeared  to  have  been  made  before  it  could  be  thought  necessary  to 
make  evidence  to  encounter  the  presumption.  It  does  not  appear,  however,  from 
the  report  that  any  such  evidence  was  given. 

®  Turner  v.  Crisp,  Str.  827  ;  2  Ves.  43  ;  Serle  v.  Lord  Barrington,  Lord  Raym. 
1370. 

''  But,  although  an  entry  by  a  steward  in  his  books  in  his  own  favor,  uncon- 
nected with  other  entries  charging  himself,  is  not  evidence  of  the  facts  stated  in 
such  entry  :  Knight  v.  Marquis  of  Waterford,  4  Y.  &  C.  284;  Doe  dem.  Kinglake 
V.  Beviss,  7  C.  B.  (62  E.  C.  L.  R.)  456  ;  yet  the  mere  fact  of  the  final  balance 
upon  the  account  being  in  the  steward's  favor  does  not  affect  the  admissibility 
of  an  entry  charging  himself:  Williams  v.  Greaves,  8  C.  &  P.  (34  E.  C.  L.  R.) 
592  ;  Rowe  v.  Brenton,  3  M.  &  R.  268.  But  there  must  be  an  admission  to  charge 
the  party  :  thus,  in  Doe  dem.  Kinglake  v.  Beviss,  7  C.  B.  (62  E.  C.  L.  R.)  456 ; 
accounts  of  the  receiver  of  one  of  the  hundreds  into  which  the  manor  of  Taunton 
Deane  is  divided,  in  which  were  entries  of  sums  received  and  paid  by  the  reeves 
from  and  to  the  woodward,  and  amongst  them  the  payment  which  was  material 
in  the  action,  were  rejected,  because  it  did  not  appear  that  the  reeve  in  any  part 
of  the  accounts  acknowledged  the  receipt  of  the  specific  sum  for  which  he  so 
claimed  credit. 

8  In  an  action  by  the  lord  for  copyhold  fines,  the  book  kept  by  the  steward  of 
all  fines  assessed,  whether  paid  or  not,  was  ofl'ered  in  evidence  to  prove  the  pay- 
ment of  fines  by  remainder-men,  as  it  was  accessible  to  all  the  copyholders^  and 
had  been  received  by  the  steward  from  his  predecessor  ;  but  it  appeared  that  the 
steward  made  up  a  second  book  at  the  end  of  each  year,  in  which  he  entered  all 
fines  which  had  been  paid  ;  and  it  was  held  that  the  evidence  was  inadmissible : 
My,  Dean,  (fee,  v.  Caldecott,  7  Bing,  (_2U  E.  C.  L.  R.)  433. 

''  Crease  v.  Barret,  1  C,  M.  &  R.  919  ;  where  it  is  said  that  the  absence  of  such 


481  PRIVATE     DOCUMENTS. 

r*4.«n  Accordingly  it  has  been  held'  that  an  entry  in  the  *parish 
books,  made  by  the  officers  of  one  township,  of  the  receipt 
of  a  portion  of  the  church  rates  from  the  officers  of  another  town- 
ship, was  evidence  to  charge  the  latter  with  the  payment  of  the  same 
sums  in  future ;  and  that  the  title  at  the  head  of  the  page,  stating 
the  customary  proportion  to  be  so  paid,  was  also  evidence.  A  private 
book  kept  by  a  deceased  collector  of  taxes,  containing  entries  by  him, 
acknowledging  the  receipt  of  sums  in  his  character  of  collector,  was 
also  held  to  be  admissible  evidence  in  an  action  against  his  surety, 
although  the  parties  who  had  paid  them  were  alive,  and  might  have 
been  called.^ 

In  an  action  of  trespass,  entries  by  the  steward  of  a  former  owner 
of  the  locus  in  quo  in  his  day-book,  of  sums  received  from  different 
persons  in  satisfaction  of  trespasses,  are  evidence  ;  and  it  was  held, 
that  whatever  would  have  charged  the  steward  would  be  admissible 
evidence.^ 

So,  old  rentals,  by  which  bailiffs  have  acknowledged  the  receipt  of 
moneys,  are  evidence  of  the  payment  of  such  rents,  and  of  the  right 
to  receive  them,  if  the  bailiff  or  receiver  be  dead.™     But  although  the 

knowledge  goes  to  the  weight  not  the  admissibility  of  the  entry.  Whether  a 
verbal  declaration  of  a  collector  of  rents  at  the  time  of  paying  over  money  as  to 
the  person  from  whom  he  received  it  is  evidence  against  the  latter,  qucere,  Furs- 
don  V.  Clogg,  10  M.  &  W.  572.  A  verbal  declaration  was  treated  as  admissible 
in  The  Sussex  Peerage  case,  11  CI.  &  F.  103. 

*  Stead  V.  Ileaton,  4  T.  R.  669  ;  2  Ves.  42 ;  Bunb.  180 ;  Outram  v.  Morewood,  5 
T.  K.  121  ;  3  Wood  332.  Old  rates  made  by  the  parish  officers  of  B.  on  the 
occupiers  of  land  as  parcel  of  £.,  and  an  account  containing  an  o^'erseer's  ac- 
count, in  which  against  the  sum  for  which  the  occupier  had  been  assessed  crosses 
were  made,  where  held  to  be  evidence  that  the  sum  assessed  had  been  paid  by 
the  occupiers :  Plaxton  v.  Bare,  10  B.  &  C.  (21  C.  E.  L.  R.)  17. 

^  Middleton  v.  Melton,  10  B.  &  C.  (21  E.  C.  L.  R.)  317.  See  also  Doe  v.  Cart- 
wright,  R.  &  M.  (21  E.  C.  L.  R.)  62,  and  M'Gaheij  v.  Alston,  2  M.  &  W.  206. 
In  the  case  of  Whitnash  t.  George,  8  B.  &  C.  (15  E.  C.  L.  R.)  556,  it  was  held 
that  entries  made  by  a  clerk  to  bankers,  in  books  kept  by  him  in  his  capacity 
as  clerk,  were  admissible  in  evidence  after  his  death,  in  an  action  by  the  bankers 
against  his  surety,  on  a  bond  conditioned  for  the  faithful  discharge  of  his  duty 
as  such  clerk.  And  it  was  held  that  such  entries  were  admissible,  not  altogether 
(according  to  Lord  Tenterden)  as  declarations  made  by  him  against  his  interest, 
but  because  the  entries  were  made  by  him  in  those  very  books  which  it  was  his 
duty  as  such  clerk  to  keep  ;  and,  per  Bayley,  J.,  the  case  of  Goss  v.  Watlington, 
3  B.  &  B.  (7  E.  C.  L.  R.)  132,  was  decided  on  the  same  principle. 

'  Barry  v.  Beddington,  4  T.  R.  514. 

"  Manning  v.  Lechmere,  1  Atk.  458  ;  Musgrave  v.  Emnierson,  10  Q.  B.  (59  E. 
C.  L.  R.)  ?j2&,  post,  note  {p.)  Where  customary  payments  were  entered  as  such 
in  ancient  receiver's  accounts,  but  were  not  uniformly  in  the  same  language,  or 


ENTRIES     BY     RECEIVERS,     STEWARDS,     ETC.  482 


nt  of  a  bailiff  *or  steward,  who  by  marking  particular    r:ic^o.9-| 
of  receipt  appears  to  have  collected  them,  be  evidence, 


accouni 

items 

it  must  appear  from  the   subscription  of  his  name  or  otherwise"  that 

it  Avas  part  of  the  account  of  the  steward  or  bailiff;  for,  in  the  absence 

of  such  evidence,  it  may  be  nothing  more  than  a  leaf  drawn  out  of  a 

book  by  the  lord  of  the  manor  himself." 

in  precise  lanf!;ua<2;e,  they  were  held  evidence  of  the  custom  :  Duke  of  lieaufort 
V.  Smith,  4  Ex.  450. 

°  Entries  in  a  deceased  agent's  accounts,  charj^ing  him  with  receipts,  althouf^h 
not  in  his  handwritin»r,  but  signed  by  him,  are  admissible:  Doe  v.  Stacei/,  5  C. 
&  P.  (25  E.  C.  L.  R.)  139.  A  book  in  the  handwriting  of  J..  B.,  purporting  to 
contain  accounts  of  tithes  collected  by  him  seventy  years  ago,  cannot  be  read 
in  evidence  without  proof  that  A.  B.  was  collector  of  tithes  at  the  time  :  Short 
V.  Lee,  2  Jac.  &  W.  464 ;  but  the  statutes  of  an  ecclesiastical  corporation  aggre- 
gate enjoying  the  appointment  of  collectors,  together  with  the  internal  evidence 
of  the  documents,  and  their  coming  out  of  the  pi'oper  custody,  amounts  to  suffi- 
cient proof  that  the  parties  were  really  collectors  :  Ibid.  In  case  for  disturbance 
of  the  plaintiff's  market,  accounts  signed  l^  a  party  styling  himself  the  stewai'd's 
clerk,  without  any  evidence  to  show  that  he  was  such  dehors  the  papers  them- 
selves, and  not  purporting  to  charge  the  party  whose  signature  they  bore,  were 
on  motion  held  to  be  inadmissible,  and  the  court  not  being  satisfied  that  such 
evidence  might  not  have  weighed  with  the  jury,  granted  a  new  trial :  De  Rutzen, 
Baron  v.  Farr,  4  Ad.  &  E.  (31  E.  C.  L.  K.)  53. 

A  deceased  receiver  had  rendered  annual  accounts  to  his  employer  of  rents 
received  by  him  from  pi-operty  at  II.  They  were  not  signed  by  any  one. 
Another  was  in  the  handwriting  of  a  deceased  clerk,  but  on  it  the  receiver  had 
written  II.  rents.  Another  was  in  the  writing  of  the  receiver's  son,  who  proved 
that  he  made  it  out  by  his  father's  authority,  and  that  it  was  rendered  to  the 
employer  in  the  usual  course.  They  were  all  received  by  Lord  Denman,  C.  J., 
in  evidence:  Doe  dem.  Sttirt  v.  Mobbs,  Car  &  M.  (41  E.  C.  L.  R.)  11.  And 
entries  of  a  deceased  officer  charging  himself  were  received,  though  written  by 
his  agent  authorized  for  the  purpose,  without  calling  the  agent,  and  such 
authority  is  shown  by  the  officer  producing  them  at  an  audit :  Doe  d.  Graham 
V.  Hawkins,  2  Q.  B.  (42  E.  C.  L.  R.)  212. 

"  Frankes  v.  Carxj,  2  Atk.  140.  And  where  bailiff's  accounts  were  not  signed, 
but  were  drawn  out  in  four  columns,  in  the  first  and  second  of  which  the  tenants' 
names  and  the  amount  to  be  paid  by  each  were  entered  in  the  handwriting  of 
the  landlord  ;  and  in  the  third  and  fourth  the  amounts  received  and  the  date  of 
the  receipt  were  entered  in  the  handwriting  of  a  deceased  steward,  they  were 
received  by  Coleridge,  J. :  Doe  dem.  Bodenham  v.  Colcombe,  Car  &  M.  (41  E.  C. 
L.  R.)  155. 

A  computus  purporting  by  the  title  to  be  that  of  Thomas  Robyn,  propositus 
or  reeve  of  Padstow  in  the  33d  year  of  lien.  VI.,  containing  receipts  of  moneys 
with  which  he  charged  himself,  and  brought  from  the  muniment  room  of  the 
plaintiff  who  claimed  under  the  grantee  of  the  port,  was  admitted  by  Lord  Den- 
man, although  not  signed,  and  there  was  no  proof  that  it  was  in  the  receiver's 
handwriting ;  and  it  was  said  that  such  documents  of  the  same  age  were  never 
signed:  Brune  v.  Thompson,  Car.  &  M.  (41  E.  C.  L.  R.)  34. 


483  PRIVATE     DOCUMENTS. 

P^  .nq-|  *Upon  a  question,  whether  certain  ancient  rentals,  pre- 
served in  the  archives  of  the  clean  and  chapter  of  Exeter^ 
were  entries  made  by  their  receivers,  charging  themselves  with  the 
receipt  of  rents,  it  was  held,  that  the  books  of  modern  receivers  were 
not  evidence  for  the  purpose  of  laying  a  foundation  by  comparison, 
and  of  showing  that  the  ancient  books  kept  in  the  same  manner,  and 
containing  similar  entries  of  receipts  and  payments,  were  also  re- 
ceivers' books,  and  entitled  to  be  read  in  evidence  as  such.^  But  if 
from  the  inspection  of  such  ancient  books,  and  the  language  of  the 
entries,  it  appear  probable  that  they  were  in  fact  receivers'  books,  it 
seems  that  they  are  admissible  in  evidence. ** 

Thus  in  an  action  by  the  corporation  of  *Exeter,  for  petty 
L  J  customs  and  port  duties  on  goods  landed  at  Teignmouth,  the 
plaintiffs,  to  show  the  receipt  of  such  dues  in  former  times,  produced 
a  series  of  accounts  purporting  to  be  the  receipts  by  the  receivers  of 
the  city.  It  was  proved  that  the  receivers'  accounts  were  regularly 
audited,  and  that  no  one  could,  at  the  time  to  which  the  evidence  re- 
lated, be  mayor  till  he  had  been  receiver  and  had  his  accounts  audited. 
Down  to  a  certain  time  the  accounts  were  not  signed  at  all ;  after- 
wards they  were  regularly  signed  by  the  auditors  only.  One  entry 
of  this  latter  class  stated  a  receipt  by  a  receiver,  B.^  of  a  sum  for 
town  dues  from  W.,  and  with  this  was  found  a  paper  stating  that  B. 
had  received  a  sum  for  town  dues  almost  exactly  corresponding  with 
that  stated  in  the  entry  and  bearing  date  at  the  same  time.  No  evi- 
dence was  given  of  the  handwriting  of  the  latter  paper,  but  B.  and 

P  Doe  V.  Tlujnne,  10  East  206. 

^  In  the  case  of  Doe  v.  Thynne,  10  East  206,  the  language  of  several  entries 
imported  that  iV.  W.  was  therein  accounting  to  the  Dean  and  Chapter  for  money 
paid  to  himself,  with  the  receipt  of  which  he  debited  himself  by  the  words  solvit 
viihi,  and  solvit  per  me;  and  the  Court  of  King's  Bench  were  of  opinion  that  the 
books  -which  had  been  rejected  at  the  former  trial  ought  again  to  be  submitted 
to  the  consideration  of  the  jury.  So  in  order  to  prove  payment  of  fee-farm 
rents  for  three  years  previously  to  21st  January,  1731  (for  the  purpose  of  satis- 
fying the  requirements  of  4  Geo.  II.  c.  28,  s.  5),  books  were  produced  from  the 
custody  of  the  present  receiver,  who  had  charge  of  the  rentals  and  title-deeds, 
containing  rent  rolls  for  many  years,  with  entries  of  sums  received  in  respect  of 
several  rents,  and  among  them  that  in  question,  but  not  signed.  A  paper 
was  also  produced  from  the  same  custody,  signed  by  E.  E.,  deceased,  styling  him- 
self an  accountant  debtor  to  the  claimant's  ancestor,  wherein  he  charged  him. 
self  with  the  receipt  of  an  aggregate  of  rents,  not  stating  the  items,  correspond- 
ing with  the  amount  in  the  books.  The  court  held  that  the  paper  containing 
the  accounts  and  the  books  were  sufficiently  connected  and  were  evidence  to 
prove  the  seisin  of  the  rent  in  question  :  Musjrave  v.  Emmerson,  10  Q.  IJ.  (59 
E.  C.  L.  K.)  326. 


ENTRIES,     ETC.,    AGAINST    INTEREST.  484 

W.  were  dead,  and  the  documents  were  more  than  thirty  years  old. 
Although  the  third  person  was  used  throughout  in  these  documents, 
and  no  one  stated  the  receipt  to  have  been  "by  me,"  they  were  held 
to  be  admissible."^ 

A  book  of  accounts,  kept  by  an  executor  and  trustee  of  an  estate 
directed  to  collect  and  apply  the  rents  for  the  benefit  of  the  cestui 
que  trusty  is  admissible  as  charging  himself,  to  prove  seisin  in  a  writ 
of  right.^  So  the  book  of  a  bursar  of  a  college  is  said  to  be  evidence 
as  to  money  paid  by  him,  or  received  to  the  use  of  a  stranger.' 

Where  a  bill  of  lading  had  been   signed   by  a  master  of  a  vessel, 

since  deceased,  for  goods  received  by  him  to  be  *delivered 

.         .  .  .  .  r*4851 

to  a  consignee  or  his  assigns,  on  his  paying  freight,  the  docu-    ^         -• 

ment  was  held  to  be  evidence  to  show  that  the  consignee  had  an  in- 
surable interest  in  the  goods  ;"  but  if,  in  such  case  the  master  should 
guard  his  acknowledgment  by  saying,  "  contents  unknown,"  so  that 
he  does  not  charge  himself  with  the  receipt  of  any  goods  in  particular, 
the  bill  of  lading,  it  is  said,  would  not  be  evidence  either  of  the 
quantity  of  the  goods,  or  of  property  in  the  consignee.^ 

In  the  case  of  Pyke  v.  Crouch,'^  it  was  held,  that  a  letter  written 
by  a  stranger  to  a  testator,  acknowledging  the  receipt  of  a  will,  was 
evidence  to  show  that  such  a  will  had  been  sent  by  the  testator. 

Upon  the  same  principle  other  entries  and  declarations  against  the 
pecuniary  or  proprietary  interest^  of  the  persons  making  them 
have  been  held  admissible  after  their  deaths.  Thus  where  A.,  a 
tenant  for  life,  with  a  limited  power  of  leasing,  reserving  the  ancient 
rent,  received  a  letter  from  his  confidential  agent,  containing  an 
account  of  the  tenants  and  rents,  on  which  the  tenant  for  life  en- 
dorsed the  words,  ''  a  particular  of  my  estate,"  and  handed  it  down 
to  B.,  the  succeeding  tenant  for  life,  who  had  a  like  limited 
power  of  leasing,  by  whom  it  was  preserved  and  handed  down, 
amongst  the  muniments  of  the  estate,  to  the  first  tenant  in  tail,  it 

'  Mmjor  of  Exeter  v.  Warren,  5  Q.  B.  (48  E.  C.  L.  R.)  773. 

=  Spiers  v.  Morris,  9  Bing.  (23  E.  C.  L.  R.)  687. 

^  Anon.,  Lord  Raym.  745.  Qu.,  Under  what  circumstances?  The  report  is 
a  very  loose  one.     It  appears  to  mean  against  the  bursar. 

°  Per  Lawrence,  J.,  Haddow  v.  Parry,  3  Taunt.  303. 

"  Ibid. 

*  Ld.  Raym.  730.  And  see  Marks  v.  Lahee,  3  Bing.  N.  C.  (32  E.  C.  L.  R.) 
408. 

y  These  statements,  in  order  to  be  receivable  as  being  made  against  the  party's 
interest,  must  be  made  while  the  interest  continues,  and  are  inadmissible  if 
made  after  its  termination  :  Crease  v.  Barrett,  1  C,  M.  &  R.  910;  Lord  Trimles- 
town  V.  Kemmis,  9  CI.  &  F.  779. 
29 


485  PRIVATE     DOCUMENTS. 

was  held  that  the  document  was  evidence  for  the  first  tenant  in  tail 
against  the  lessee  of  B.,  in  order  to  show  that  the  rent  reserved  hy 
B.,  the  tenant  for  life,  was  less  than  the  ancient  rent  which  was 
reserved  at  the  time  to  which  the  paper  referred,  the  paper  having 
been  accredited  by  the  then  owner  of  the  estate,  who  had  the  means 
of  knowing  the  fact,  and  who  had  an  interest  the  *other 
L  J  way  ;  viz.^  to  diminish  the  rent,  in  order  to  increase  his  fine 
upon  a  renewal  under  the  power.'' 

Where  the  question  was  as  to  the  property  in  a  horse  seized  by 
the  defendant  under  a  heriot  custom,  a  declaration  by  A.  B.,  a  third 
person,  that  he  had  given  up  his  farm  and  all  his  stock  to  the 
plaintiff,  was  held  to  be  admissible  for  the  plaintiff  for  the  purpose 
of  proving  that  the  horse  belonged  to  the  plaintiff  before  the  death 
of  A.  B^ 

But  it  must  appear  that  such  declaration  or  entry  was  against  the 

interest  of  the  party  making  it,  in  order  to  be  admissible ;  and  if  it 

do  not  so  appear  it  will  be  rejected.     Thus,  in  Beg.  v.  Inhabitants  of 

Woiih,^  an   entry  by  a   deceased  master  in  a   book   in  which  he  was 

in   the   habit  of  entering   the  hirings   of  his   servants,  which  Avas  as 

follows  :   "April  4th,  1824.      W.   Worrell  came,  and  to  have  for  the 

half-year,   40s.     September    29.     Paid    this    X2.     Oct.    27.     Came 

*ao;ain   and  to   have  Is.  per  week  to   March  25th,  1825,  is 
r*4g7"i       ^  ^  .       . 

L         -I  twenty-one  weeks,  two  days,  =£1  Is.  Qd.     25th.     Paid  this  ;" 

^  Roe  dem.  Brune  v.  limclings^  7  East  291. 

"  Ivatt  V.  Finch,  1  Taunt.  141.  Note,  that  in  this  case  the  defendant  claimed 
through  A.  B.,  upon  whose  death  he  became  entitled  to  a  particular  portion  of  his 
personal  property  as  a  heriot.  And  see  Coule  v.  Braham,  3  Ex.  183.  A.  had 
taken  the  goods  of  B.  in  execution,  and  the  sheriflF  having  executed  a  bill  of  sale 
to  him,  B.  was  permitted  to  remain  in  possession,  and  the  sherifiP  afterwards 
took  the  same  goods  in  execution  at  the  suit  of  another  creditor  of  B.  In  an 
action  by  A.  against  the  sheriff  for  the  goods,  it  was  held,  that  the  declarations 
of  B.  as  to  the  property  of  the  goods,  and  that  A.''s  execution  was  merely  color- 
able, were  admissible  for  the  sheriff:  Willies  v.  Farley,  3  C.  &  P.  (14  E.  C.  L. 
R.)  395;  and  see  Prosser  v.  Gwillim,  1  C.  &  K.  (47  E.  C.  L.  R.)  95;  Gttlli/  v. 
Bishop  of  Exeter,  5  Ring.  (15  E.  C.  L.  R.)  171.  But  a  declaration  by  a  former 
occupier  of  land,  over  which  the  plaintiff  claims  an  easement,  is  not  admissible 
against  the  latter :  Hcholes  v.  Chadivick,  2  M.  &  Rob.  507.  In  trover  by  a  pur. 
chaser  of  goods  afterwards  sold  by  the  defendant  (the  sheriff)  under  a,  fi.  fa., 
statement  by  the  vendor  and  execution  debtor  was  held  by  Wightman,  J.,  to  be 
inadmissible  for  the  defendant,  the  plaintiff  claiming  adversely  to,  and  not  under 
the  debtor:  Roberts  v.  Justice,  1  C.  &  K.  (47  E.  C.  L.  R.)  93.  The  same  point 
was  HO  ruled  in  Stothert  v.  James,  Ibid.  121,  by  Maule,  J.,  who  observed  that 
the  execution  creditor  claims  adversely  to  the  debtor. 

MCi.  B.  (45  E.G.  L.  R.)  132. 


ENTRIES,  ETC.,  AGAINST  INTEREST.         487 

was  tendered  in  evidence  to  prove  the  hiring  in  a  settlement  case, 
but  was  held  inadmissible,  on  the  ground  that  as  it  merely  showed  a 
contract  which  must  be  supposed  to  be  made  on  equitable  terms,  the 
entry  was  not  against  the  interest  of  the  master. 

The  declarations  of"  deceased  tenants  have  in  many  instances  been 
admitted  in  evidence,  on  matters  connected  with  their  tenancies, 
principally,  as  it  seems,  upon  the  ground  that  their  declarations  were 
made  against  their  own  interest. 

In  Doe  v.  Williams,'^  the  question  was,  whether  Mrs.  Gallon  (from 
whom  the  defendant  claimed)  was  in  possession  of  the  premises  at  the 
time  when  she  levied  a  fine  ;  and  evidence  was  admitted  by  Lord  Mans- 
field of  a  conversation  between  Mrs.  Gallon  and  Mrs.  Pearce  (who  was 
living,  but  interested  as  being  the  present  tenant,)  in  which  the  one 
admitted  that  she  had  paid  the  rent  to  the  other  as  her  land-  r:(c4^oQ-| 
lord,  and  the  other  admitted  that  she  had  *received  the  rent.* 

"  Oral  declarations  depend  partly  upon  the  same  principles  with  written 
entries,  but  are  far  weaker  in  deo;ree ;  they  are  usually  made  with  less  delibera- 
tion, are  more  likely  to  be  loosely  and  wantonly  made,  and  are  usually  uncon- 
nected with  any  regular  course  and  routine  of  business.  The  declarations  of 
tenants  are  not  evidence  against  reversioners,  although  their  acts  may  be.  Per 
Patteson,  J.,  in  Tickle  v.  Broicii,  4  Ad  &  E.  (31  E.  C.  L.  R.)  27S.  Such  decla- 
rations, to  be  admissible,  must  have  been  made  during  the  tenancy  :  Loi-d  Trlm- 
lestown  V.  Kemmiss,  9  CI.  &  F.  779. 

^  Cowp.  621.  Trustees  allow  one  who  had  an  equitable  life  estate  to  receive 
the  rents  and  profits.  The  latter,  while  in  such  receipt,  executes  a  deed  recitinp; 
the  trust,  and  that  he  is  in  possession  by  permission  of  the  trustees.  This  re- 
cital was  held  admissible  for  the  trustees,  being  made  in  derogation  of  the 
apparent  right  of  the  cestui  que  trust  to  be  considered  as  owner  of  the  fee  :  Doe 
clem.  Daniel  v.  CouWired,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  235.  So  a  declaration  by 
one  actually  managing  property,  that  he  does  so  in  the  name  of  another,  is  ad- 
missible evidence  for  the  latter:  Baron  de  Bodes  case,  8  Q.  B.  (55  E.  C.  L.  R.) 
207. 

®  It  is  observable  that  the  verdict,  notwithstanding  the  admission  of  the  evi- 
dence, was  for  the  plaintiff;  consequently  no  question  was  afterwards  made 
before  the  court  as  to  the  admissibility  of  this  evidence.  The  evidence  itself 
appears  to  have  been  extremely  loose,  the  witness  not  stating  either  the  occasion 
or  the  terms  of  the  conversation,  but  merely  that  he  remembered  a  conversation, 
in  which  the  one  admitted  that  she  had  paid  the  other  rent  as  her  landlord,  and 
the  other  that  she  had  received  rent  from  her  as  tenant.  Much  in  such  a  case 
would  depend  on  the  object  of  the  conversation,  as  well  as  the  terms  :  a  settle- 
ment of  account  between  the  parties  as  landlord  and  tenant,  as  it  would  bind 
both,  would  weigh  in  evidence  as  an  act  done,  in  the  same  manner  as  payment 
of  rent.  A  declaration  by  a  tenant  in  possession,  since  deceased,  that  he  then 
paid  rent  to  the  lessor  of  the  plaintiff,  made  within  twenty  years,  is  evidence  of 
title  against  the  defendant,  who  had  said  that  he  was  tenant  to  II. :  Doe  v_ 
Beckett,  4  Q.  B.  (45  E.  C.  L.  R.)  601.    Receipts  for  rent  given  by  two  successive 


488  PRIVATE     DOCUMENTS. 

In  Davies  v.  Pearce^  which  was  an  action  of  replevin,  the  ques- 
tion was,  whether  the  locii8  in  quo  was  parcel  of  the  tenement 
B. ;  evidence  was  offered  by  the  plaintiff  of  declarations  by  deceased 
tenants  of  the  locus  in  quo,  which  was  part  of  L.,  that  they  rented 
L.  of  Mr.  Evans,  who  was  never  the  owner  of  B.  ;  that  one  tenant 
had  said,  that  he  paid  Mr.  Evans  five  shilling's  yearly,  and  a 
quarter  of  mutton  for  L.,  and  that  he  was  then  going  to  pay  that 
rent  to  the  said  J.  Evans  for  the  said  L. ;  and  that  he  had  ordered 
his  servant  to  herd  some  cattle  at  L.,  saying,  that  otherwise  he  could 
not  afford  to  pay  Mr.  Evans  his  rent.  And  that  another  tenant  had 
prevented  a  person  from  cutting  rushes  on  L.,  and  threatened  that 
he  would  tell  Mr.  Evans,  his  landlord,  of  his  cutting  the  rushes ;  and 
once  took  the  rushes  from  that  person,  and  told  him  that  they 
belonged  to  Mr.  Evans.  And  that  forty  years  ago  T.  H.  rented  L. 
for  one  year,  and  said  that  he  paid  rent  either  to  Mr.  Evans  or  his 
r*4.SQ1  ™other.  This  evidence  was  rejected  at  the  trial,  and  a  bill 
*of  exceptions  was  therefore  tendered ;  but  the  court  of  K. 
B.  was  of  opinion  that  the  evidence  was  admissible  ,^  Ashhurst,  J., 
observing,  that  the  fact  of  cutting  rushes  was  decisive,  and  Buller, 
J.,  adding,  that  the  other  question,  relating  to  the  tenant's  declara- 
tion that  he  had  paid  rent  for  the  premises,  had  been  decided  in  the 
cases  of  Holloivay  v.  Makes,  and  Doe  v.  Williams}' 

In  the  case  of  Holloivay  v.  MaJces,^  cited  by  Mr.  J.  Buller,  the 
question  was,  whether  the  devisor  of  an  estate  twenty-seven  years 

landlords  for  many  years  to  the  tenant,  and  preserved  by  the  later,  are  receivable 
to  show  the  seisin  of  those  landlords :  Doe  d.  Blayney  v.  Savage,  1  C.  &  K.  (47 
E.  C.  L.  R.)  487. 

'  2  T.  R.  53. 

8  It  was  not  essential,  in  this  case,  that  the  court  should  give  a  decided  opinion 
on  the  mere  declarations  of  the  tenants,  since  other  evidence  had  been  rejected; 
viz.,  of  the  fact  of  cutting  down  the  rushes,  and  the  accompanying  declaration 
which  rendered  it  incumbent  to  award  a  venire  de  novo.  Mr.  J.  Ashhurst  seems 
to  have  founded  his  judgment  upon  that  point  only  :  Mr.  J.  Buller  indeed  went 
farther,  and  intimated  his  opinion  upon  the  bare  declarations.  It  is,  however,  to 
be  ol>served,  that  the  case  of  Doe  v.  Williams  does  not  support  that  opinion  to 
the  full  extent;  for  these  the  evidence  did  not  rest  as  a  mere  declaration  to  a 
stranger,  but  occurred  in  the  course  of  conversation  between  the  parties,  as  to  a 
supposed  account  between  them  as  landlord  and  tenant ;  it  was  of  the  same 
nature,  though  weaker  as  evidence  of  an  actual  payment:  and  if  the  letting 
was  by  parol,  it  would  have  been  difficult  to  have  given  other  evidence  of  the 
relation  between  the  parties  than  their  actual  dealings  and  communications  on 
the  subject. 

''  Supra,  note  [d). 

»  2  T.  n.  55. 


ENTRIES,  ETC.,  AGAINST  INTEREST.         489 

ago,  of  wbicli  there  bad  been  no  possession  was  seised  ;  and  a  decla- 
ration of  a  tenant  in  possession  at  that  time,  that  he  held  as  tenant 
to  the  devisor,  was  admitted.  And  the  court  afterwards  held  that  it 
had  been  properly  admitted.'' 

*In  the  case  o^  Peaceable  v.  Watson}  it  was  held,  that  the 
declaration  of  a  deceased  tenant,  of  his  holding  the  land  of  a    '-     '    -' 
particular  person,  was  evidence  to  prove  the  seisin  of  the  latter,  upon 
the  ground  that  the  declaration  was  against  his  own  interest,  since  it 
mio;ht  have  been  made  use  of  as  evidence  against  him. 

In  the  case  of  Walker  v.  Broadstock,"'  where  the  plaintiff  claimed 
a  prescriptive  rigbt  of  common,  par  cause  de  vicinage,  as  appurte- 
nant to  his  messuage,  it  was  held  that  a  declaration  of  forty  years 
ago,  by  a  former  occupier,  since  dead,  of  the  plaintiff's  messuage, 
that  his  cattle  had  been  impounded  on  Corse  Lawn  (where  common 
was  claimed),  was  admissible;  and  also  that  declarations  by  another 
occupier,  though  still  living,  of  his  opinion  that  he  had  no  such  right 
of  common  appurtenant  to  the  messuage,  were  admissible  on  the 
general  ground   that   the  declarations  of  tenants  against  their  own 

^  It  is  to  be  remarked,  that  the  court  seem  to  have  doubted  upon  the  propriety 
of  admittint;  such  evidence  in  general,  since  they  resorted  to  another  principle  to 
support  the  admission  in  that  case,  namely,  the  probability  that  the  defendant 
derived  title  from  the  tenant  who  made  the  admission,  and  was  therefore  bound 
by  it.  See,  however.  Doe  v.  Green,  1  Gow  (5  E.  C.  L.  R.)  227.  In  Doe  dem. 
Earl  Spencer  v.  Beckett,  4  Q.  B.  (45  E.  C.  L.  R. )  601,  the  land  in  question  had 
been  conveyed  to  the  lessor  of  the  plaintiff  fifty  j'ears  before  the  action  was 
brought ;  he  had  not  occupied,  but  one  who  had  done  so  proved  payment  of  rent 
by  himself  to  the  lessor  of  the  plaintiff  within  thirty-three  years,  when  H.  began 
to  occupy ;  declarations  by  H.  that  he  was  then  paying  rent  to  the  lessor  of  the 
plaintiff,  made  within  twenty  years  of  the  commencement  of  the  action,  were 
proved.  The  defendant  had  acknowledged  that  he  held  of  H.  It  was  con- 
sidered that  he  was  bound  by  the  evidence  which  was  good  against  H.,  and  that 
payment  of  rent  by  him  was  proved.  This  was  so  held  where  the  question  was 
whether  the  payment  of  rent  was  proved  so  as  to  satisfy  sect.  8  of  the  statute  3 
&4AVill.  IV.  c.  27. 

^  4  Taunt.  16.  It  would  also  be  evidence  against  future  occupiers,  although 
they  did  not  claim  through  that  person :  Doe  dem.  Linseij  v.  Edwards,  5  A.  & 
E.  (31  E.  C.  L.  R.)  95. 

*"  Esp.  C.  458.  It  is  to  be  observed,  that  in  this  case  the  statements  of  a  former 
tenant  who  was  alive  were  received,  but  this  would  rather  appear  to  be  erroneous. 
Declarations  by  a  party  through  whom  the  opposite  party  claims,  are  admissible 
against  him,  though  that  person  be  alive ;  but  this  is  upon  a  totally  distinct 
principle,  there  being  a  privity  between  the  two.  The  declarations  by  a  stranger 
as  against  his  interest  are  not  admissible  during  his  life :  see  Phillips  v  Cole,  10 
Ad.  &  E.  (37  E.  C.  L.  R.)  106  ;  and  see  the  distinction,  1  Ad.  &  E.  (28  E.  C.  L. 
R.)  114. 


400  PRIVATE     DOCUMENTS. 

rights  are  evidence.  These  cases  seem  to  have  established  the  prin- 
ciple that  such  declarations  are  admissible  on  the  ground  of  being 
against  interest ;  but  it  cannot  but  be  remarked  that  such  evidence, 
to  say  the  least,  is  exceedingly  weak. 

*In  the  case  of  Barker  v.  Ray,  an  issue  was  directed  by 
L  -I  the  Court  of  Chancery,  to  try  whether  Edmund  Barker,  the 
elder,  by  his  will  (since  his  death  succeeded,  &c.,  by  Edmund  Barker, 
his  nephew),  devised  certain  estates,  &c.  Upon  the  trial  evidence 
was  offered  of  declarations  made  by  Elizabeth  Barker,  the  widow  of 
Edmund  the  nephew,  both  before  and  after  the  death  of  Edmund 
the  nephew,  tending  to  show  that  her  husband  and  the  other  nephews 
were  only  tenants  for  life.  The  evidence  was  rejected,  and  the  jury 
having  found  for  the  defendants,  the  Lord  Chancellor,  on  an  appli- 
cation made  by  the  plaintiff  for  a  new  trial,  on  the  ground  (amongst 
others)  that  the  evidence  ought  to  have  been  received,  refused  it, 
without  deeming  it  to  be  necessary  to  give  any  opinion  as  to  the  ad- 
missibility of  the  evidence.  Here  it  is  observable,  that  the  declara- 
tions oifered  in  evidence  were  neither  coupled  with  any  act,  nor  made 
in  the  discharge  of  any  office  or  duty,  but  were  the  mere  voluntary 
declarations  of  the  wife  on  her  husband's  affairs. 

Declarations,  however,  not  merely  in  derogation  of  the  title  of  the 
party  making  them,  but  whereby  that  party  also  gains  an  advantage, 
are  not  admissible  under  this  rule." 

In  some  instances,  as  will  afterwards  be  more  particularly  con- 
sidered under  the  head  of  Admissions,  the  declarations  of  a  former 
owner   are  evidence   in  respect  of  the  subject-matter  of  ownership." 

"  Doe  V.  WainwrigJit,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  691.  In  this  case  a  devisee 
for  life  under  the  will  of  her  late  husband,  conveyed  the  premises  by  a  deed 
which  recited  an  outstanding  mortgage  of  the  husband,  and  purported  to  be 
made  in  consideration  of  forbearance  to  her  as  executrix,  and  of  advances 
made  to  her.  And  see  Rej.  v.  Worth,  supra ;  Doe  v.  Leivis,  20  L.  J.,  C.  P. 
177. 

"  See  Vol.  II.,  tit.  Admissions.  In  Woolwayv.  Rowe,  1  Ad.  &  E.  (28  E.  C.  L. 
R.)  114,  the  question  was  whether  Scorhill  was  parcel  of  plaintiflf's  estate,  or 
part  of  the  waste  of  a  manor,  the  plaintiff  liaving  no  other  interest  than  right 
to  turn  on  cattle  ;  and  evidence  was  admitted  of  a  dechxration  by  a  former 
owner  and  occupier  of  phiintiff's  estate,  that  he  had  no  right  to  enclose  the 
down  (the  locics  in  quo,)  although  the  former  owner  was  alive,  and  in  the  court, 
on  the  ground  of  identity  of  interest;  and,  consequently,  as  an  admission. 
Semhle,  that  the  principle,  such  as  it  is,  of  admitting  such  evidence  is  to  explain 
a  negative,  i.  e.,  the  omission  to  enclose.  An  act  of  enjoyment,  or  of  right 
exercised,  is  admissible  ;  as  an  accompanying  declaration  is  also  evidence  to 


ENTRIES,  ETC.,  AGAINST  INTEREST.         492 

And  sucli  decliirations  *are  admissible  as  orif^inal  evidence,    r^.„_-, 

.  I  "xyij  I 

although  the  person  who  made  them  be  still  living ;''  decla-  •-  -• 
rations,  however,  made  after  such  interest  has  ceased  are  not  admis- 
sible.'' 

The  second  class  of  entries'^  by  third  persons,  to  which  allusion 
has  been  made  as  being  admissible  in  evidence,  is  that  which  com- 
prises memoranda    or    statements   made  *in     the    ordinary    ^^.^^^ 

r*4931 
course  of  business  by  persons   since    deceased,  upon  whom    ^  -' 

the  duty  of  making  them  has  been  imposed.  The  most  familiar  in- 
stance of  this  class  is  Lord  Torrington  s  ease.^  There  the  evidence 
was,  that  according  to  the  usual  course  of  the  plaintiff's  dealings,  the 
draymen  came  every  night  to  the  clerk  of  the  brew-house,  and  gave 
him  an  account  of  the  beer  delivered  out,  which  he  set  down  in  a 
book  to  which  the  draymen  set  their  hands,  and  that  the  drayman 
was  dead,  but  that  it  was  his  hand  set  to  the  book  ;  and  it  was  held 
to  be  good  evidence  of  a  delivery. 

In  the  case  of  Clerk  v.  Bedford,^  where  the  plaintiff,  to  prove  a 

explain  the  nature  of  the  act.  And  semble,  a  declaration  may  be  also  evidence 
to  explain  why  the  party  abstained. 

In  a  quare  impedit  between  the  Irish  Society  and  the  Bishop  of  Derri/,  the 
Bishop  claimed  the  right  of  patronage  of  the  living  of  Camus,  in  Londonderry, 
within  his  diocese.  A  surrender  (not  confirmed  by  the  dean  and  chapter)  by  a 
former  bishop  to  the  Crown  of  all  the  livings  in  Londonderry,  coupled  with  a 
grant  from  the  Crown  dated  two  days  after  the  surrender,  reciting  that  all  the 
livings  in  that  county  had  anciently  belonged  to  the  see,  were  held  admissible 
as  an  admission  by  the  Crown  of  that  fact  against  the  Society,  who  proved  that 
before  the  date  of  that  grant  the  Crown  had  entered  into  articles  of  agreement 
with  the  Society  to  grant  them  the  livings  in  that  county,  of  which  the  living 
in  question  was  one:  Irish  Society  v.  Bishop  of  Derry,  12  CI.  &  F.  641.  So 
letters  from  the  Crown  to  successive  bishops  of  Derry.  directing  them  to  perform 
the  covenants  in  that  grant,  were  held  admissible  :  Ibid.  Declarations  by  per- 
sons holding  a  negotiable  security,  under  the  same  title,  are  admissible  ;  but 
the  right  of  a  party  holding  under  a  good  title  is  not  to  be  cut  down  by  the 
acknowledgment  of  a  former  owner  that  he  had  no  title.  Per  Parke,  J.,  1  Ad. 
&  E.  (28  E.  C.  L.  R.)  116.  And  see  Beauchamp  v.  Parry,  I  B.  &  Ad.  (20  E.  C. 
L.  R.)  89  •,  Borough  v.  White,  4  B.  &  C.  (10  E.  C.  L.  R.)  325 ;  Phillips  v.  Cole, 
(37  E.  C.  L.  11.)  106. 

P  1  Ad.  &  E.  (28  E.  C.  L.  R.)  1 14. 

1  Doe  V.  Webber,  1  Ad.  &  E.  [26  E.  C.  L.  R.)  733;  3  N.  &  M.  (28  E.  C.  L.  R.) 
586  ;  Lord  Trimlestone  v.  Kemmis,  9  CI.  &  F.  779  ;  and  see  Vol.  II.,  tit.  Admis- 
sions. 

■■  It  would  seem  that  oral  declarations  made  in  the  ordinary  course  of  business 
would,  under  like  circumstances,  be  admissible,  as  well  as  written  entries  ;  see 
per  Lord  Campbell,  Sussex  Peerage  case,  11  CI.  &  F.  113. 

"B.  N.  P.  285;  1  Salk.  285;  1  Smith's  L.  C.  139. 

'  B.  N.  P.  282 ;  M.  5  Geo.  II. 


493  PRIVATE     DOCUMENTS. 

delivery,  produced  a  book  which  belonged  to  his  cooper,  who  was 
dead,  but  his  name  set  to  several  articles,  as  wine  delivered  to  the 
defendant,  the  evidence  was  rejected  by  Lord  Raymond,  who  dis- 
tinguished it  from  Lord  Torrington  s  case,  because  there  the  Avitness 
saw  the  draymen  sign  the  book  every  night. ^ 

In  the  case  of  Pitman  v.  Maddox,"^  in  an  action  upon  a  tailor's 
bill,  a  shop-book  was  produced,  written  by  one  of  the  plaintift"s  ser- 
vants, who  was  dead ;  and  upon  proof  of  the  death  of  the  servant, 
and  that  he  iised  to  make  such  entries,  it  was  allowed  to  be  good  evi- 
dence of  the  delivery  of  the  goods."     From   these  cases   it  may  be 

"  Lord  Raym.  732  ;    2  Salk.  690.  ^  See  B.  N.  P.  282. 

'  The  memoranda  of  acts  by  a  person  who  is  dead,  and  whose  duty  it  was  in 
the  course  of  the  business  he  had  undertaken  to  do  the  acts  and  make  the 
memoranda  of  them,  is  competent  evidence  for  the  consideration  of  a  jury  to 
prove  that  the  acts  were  done:  Welsh  v.  Barrett,  15  Mass.  380.  Thus  where 
the  messenger  in  a  bank,  whose  duty  it  was  to  deliver  notices  to  makers  and 
endorsers  of  promissory  notes  and  to  make  a  memorandum  thereof,  in  a  book 
kept  by  him  for  that  purpose,  had  made  such  memoranda ;  it  was  held  that  the 
book,  the  messenger  being  dead,  was  competent  evidence  to  prove  the  fact  of 
notice,  according  to  the  memoranda  therein  made  by  him  :  Ibid.  So  the  entries 
made  by  a  merchant's  clerk,  he  being  dead,  may  be  received  as  evidence,  in 
a  case  proper  for  the  admission  of  a  merchant's  books  as  evidence  :  Ibid. 
(This  case  was  fully  recognized  by  the  Supreme  Court  of  the  United 
States,  in  NicJioUs  v.  Wehh,  8  Wheat.  326).  So  after  a  lapse  of  ten 
years,  it  was  held  that  a  written  memorandum  made  at  the  time  of  the 
transaction,  as  to  notice  of  protest  of  a  note,  may  be  read  in  evidence  in 
connection  with  other  evidence.  The  memorandum  was  on  the  back  of  the 
note ;  the  demand,  protest  and  notice  were  signed  by  the  notary,  and  these  were 
held  admissible :  Hart  et  al.  v.  Wilson,  2  Wend.  513  ;  [Halliday  v.  Martinett,  20 
Johns.  168);  Butler  v.  Wright,  2  Wend.  369;  Bell  v.  Perkins,  Peck  261; 
McNeill  v.  Elam,  Peck  268  ;  see  also  Farmers^  and  Mechanics''  Bank  v.  Boraef, 
1  Rawle  152.  But  a  plaintiff  is  not  a  competent  witness  to  prove  the  handwrit- 
ing of  a  person,  who  made  the  entries  in  his  book,  and  who  had  subsequently 
died  :  Kursper  v.  Smith,  1  Browne  App.  53 ;  see  also  Sterrett  v.  Bull,  1  Binn. 
234.  Where  the  question  was  whether  a  deed,  an  exemplification  of  which 
had  been  given  in  evidence,  the  original  being  alleged  to  be  lost,  was  a  forgery 
or  not,  it  was  held  that  a  book  of  accounts  belonging  to  the  magistrate,  before 
whom  the  deed  purported  to  be  acknowledged  and  who  was  also  a  subscrib- 
ing witness,  but  who  was  dead  at  the  time  of  the  trial,  containing  charges  for 
taking  the  acknowledgment  of  deeds,  was  admissible  in  evidence  to  show  that 
the  deed  could  not  have  been  acknowledged  before  him  :  Kuurse  v.  McCay,  2 
Rawle  70.  G. 

In  an  action  for  money  had  and  received  by  a  bank  against  a  depositor  who 
had  overdrawn,  the  books  of  the  bank  are  competent  evidence  to  show  receipts 
and  payments  of  money;  and  if  the  clerk  who  made  the  entries  be  dead  or  in- 
sane, the  book  is  admissible  u|)on  }iroving  his  handwriting:  Union  Bank  v.  Knapp, 
3  Pick.  96.  I. 


ENTRIES    IN    THE     USUAL     COURSE     OF    BUSINESS.     493 

inferred  that  some  evidence  ought  to  be  given  to  show  that  such 
entries  were  made  in  the  usual  routine  of  business  ;  but  perhaps  it 
may  not  be  necessary,  as  in  Lord  Torrinyton's  case,  to  prove  the 
signature  by  one  who  saw  it  written. 

In  the  case  of  Dighy  v.  Stedman/  an  entry  made  by  a  defendant 
himself  in  the  course  of  business,  and  contemporary  with  the  fact, 
was  received  as  confirmatory  evidence  to  prove  the  delivery  of  a 
watch.  Again,  in  Hagedorn  v.  *Reed,^  the  entry  by  a  de-  r-^.Q.-, 
ceased  clerk  of  a  merchant  in  the  letter-book  of  a  letter,  '-  -' 
with  a  memorandum  stating  that  the  original  had  been  sent  to  a  par- 
ticular person,  was  held  to  be  evidence  of  the  fact ;  proof  having 
been  given  that  it  was  the  invariable  course  of  that  merchant's  office, 
that  the  clerk  who  copied  any  letter  sent  it  oflf  by  the  post,  and  made 
a  memorandum  on  the  copy  that  he  had  done  so.^ 

y  1  Esp.  C.  328.  This  entry  seems  to  have  been  used  to  refresh  the  shopman's 
memory.  An  entry  in  a  tradesman's  books  certainly  is  not,  merely  as  such, 
evidence  in  his  favor  :  see  E.  v.  Worth,  4  Q.  B.  (45  E.  C.  L.  R.)  132;  svpra,  p. 
486,  and  note  [a],  infra. 

^  3  Camp.  379.  See  also  Pritt  v.  Faircleugh,  3  Camp.  305,  where  similar  evi- 
dence vpas  received :  Chainpneys  v.  Peck,  1  Stark.  C.  (2  E.  C.  L.  R.)  404,  infra. 
In  the  case  of  Calvert  v.  The  Archbishop  of  Canterbury,  2  Esp.  C.  645,  Lord 
Kenyon  held,  that  an  entry  made  in  the  plaintiflTs  books,  by  a  servant  since  de- 
ceased, of  a  contract  made  with  the  defendant,  was  not  admissible  in  evidenee  to 
prove  the  terms  of  the  contract,  because  the  entry  did  not,  as  in  the  case  of  Price 
V.  Lord  Torrington,  charge  the  clerk.  It  does  not  appear  that  in  this  case,  the 
clerk,  in  making  the  memorandum,  professed  to  have  made  it  personally  with 
the  defendant  or  his  agent ;  and  he  might,  for  anything  that  appeared  to  the 
contrary,  have  made  it  on  hearsay  from  the  plaintiff  himself.  Nor  is  it  said  to 
have  been  the  servant's  duty  or  business  to  enter  the  contract. 

'  By  an  innovation  upon  the  common  law,  the  books  of  original  entries  of 
shopkeepers  and  others  have  been  received  in  evidence  by  the  courts  of  some  of 
our  States,  to  prove  the  sale  and  delivery  of  goods  and  the  performance  of  work 
and  labor,  together  with  the  price  of  the  same  ;  but  such  testimony  must  be 
supported  by  the  oath  of  the  plaintiff,  that  the  book  produced  is  his  book  of 
original  entries,  and  that  the  items  charged  were  entered  by  him  at  the  time  of 
the  delivery  of  the  goods  or  performance  of  the  services  or  immediately  after- 
wards. In  South  Carolina  [Lynch  v.  McHugo,  1  Bay  33  ;  Foster  v.  Hinkler,  1 
Bay  40;  Slade  v.  Teasdale,  2  Bay  172)  ;  and  Ohio  [James  v.  Richmond  et  al., 
Conover's  Dig.  162);  such  evidence  has  been  made  admissible  by  statute;  but 
in  Ohio,  after  the  lapse  of  eighteen  months  from  the  time  of  closing  the  account 
such  testimony  will  not  be  received  :  James  v.  Richmond  et  al.  In  Pennsylvania 
and  Massachusetts  the  courts  have  themselves  modified  the  rules  of  law  so  as  to 
render  such  evidence  competent — the  law  upon  the  subject  in  Connecticut  will 
appear  in  the  cited  decisions — while  in  New  York,  resistance  has  been  steadily 
made  to  such  an  encroachment  upon  the  settled  principles  of  the  common  law : 


194  PRIVATE     DOCUMENTS. 

In  the  following  case  the  principle  seems  to  have  been  carried 
much   farther.       Upon   an   issue   out   of    Chancery,   to  try  whether 

Schermerhorn  v.  Schermerhorn,  1  Wend.  119.  In  the  former  States  the  admis- 
sion of  such  testimony  has  been  placed  upon  the  grounds  of  necessity.  "  In  con- 
sideration of  the  mode  of  doing  business  in  the  infancy  of  the  country  when  many 
kept  their  own  books,  it  has  been  permitted  from  the  necessity  of  the  case  to 
offer  their  books  in  evidence.  But  when  no  such  necessity  exists,  when  the  fact 
is  that  clerks  have  been  employed  and  the  entries  made  by  them,  there  is  no 
cause  for  violating  that  wise  principle,  that  no  man  shall  be  allov^ed  to  give  tes- 
timony for  himself:"  Sterrett  v.  Bull,  1  Binn.  244;  see  also  Faxon  v.  Hollis,  13 
Mass.  427  ;  Prince  v.  Smith,  4  Mass.  455.  The  reception  of  evidence  of  this 
kind  has  always  been  considered  as  attended  with  much  danger,  which  has  led 
the  courts  to  guard  strictly  against  any  further  extension  of  the  principle  of  the 
admissibility  of  such  testimony. 

Of  what  evidence.  Entries  made  by  the  party  himself  are  evidence  to  charge 
the  defendant  in  two  cases  only,  namely,  where  goods  are  sold  and  work  done  : 
Wilmer  et  al.  v.  Israel,  1  Browne  257  ;  Prince  v.  Smith,  supra.  '  The  book  of 
original  entries  of  the  plaintiff  is  admissible  in  a  scire  facias  on  a  claim  under 
the  Mechanics'  Lien  Law,  to  prove  that  the  materials  for  which  the  suit  was 
brought,  were  furnished  at  and  for  the  particular  building  which  is  the  subject 
of  the  lien :  McMnllen  v.  Gilbert,  2  Whart.  237 ;  see  also  Linn  v.  Naglee,  4 
Whart.  92  ;  Church  v.  Davis,  9  Watts  304.  The  shop  book  of  a  tradesman  is  evi- 
dence to  charge  the  original  debtor  only  ;  it  is  not  admissible  against  a  defend- 
ant, who  merely  assumed  to  pay  the  debt  of  the  person  to  whom  the  goods  were 
sold :  Poultney  et  al.  v.  Ross,  1  Dall.  238.  In  a  suit  between  A.  and  B.  the 
books  of  original  entries  of  C.  is  not  evidence  to  show  a  collateral  fact,  as  that 
A.  was  charged  by  C.  as  a  partner  in  a  certain  house  :  Juniata  Bank  v.  Brown, 
5  S.  &  R.  226.  Neither  are  such  entries  by  a  plaintiff  evidence  of  the  payment 
of  money  to  third  persons  by  the  defendant's  order,  nor  of  such  demands  as  in 
their  nature  afford  a  presumption  that  better  evidence  exists :  Prince  v.  Smith, 
supra.  But  entries  in  a  book  of  payments  made  for  another,  may  be  given  in 
evidence,  if  accompanied  by  proof  that  the  person  had  constant  access  to  the 
books  and  assented  to  the  entries :  Hines  v.  Barnitz,  8  Watts  39.  And  a  book 
of  original  entries,  verified  on  oath,  is  not  competent  evidence  of  the  delivery  of 
goods,  under  a  previous  contract  for  their  delivery,  at  different  distant  periods  : 
Lonerjan  v.  Whitehead,  10  Watts  249.  So  the  book  of  original  entries  of  a 
tradesman,  is  not  evidence  of  the  delivery  of  goods  to  be  sold  on  commission, 
even  though  such  book  be  offered  not  to  charge  the  defendant,  but  as  rebutting 
evidence  to  explain  certain  payments  proved  by  the  defendant :  Murphy  v.  Cross, 
2  Whart.  33.  And  it  has  been  held  in  Massachusetts  that  the  book  of  a  party, 
containing  his  original  minutes,  is  wholly  incompetent  to  prove  the  payment  of 
cash  to  third  persons  by  order,  and  charges  of  rent ;  for  better  proof  of  such 
demands,  if  true,  may  be  had  :  Prince  v.  Smith,  sujrra.  Entries  in  a  book  made 
or  caused  to  be  made  by  a  father,  of  advancement  to  his  children,  are  competent 
evidence,  altiiough  the  child  charged  had  no  knowledge  of  the  entry:  Hengst's 
Estate,  ()  Watts  SG.  So  an  account-book,  containing  entries  made  by  A.  and  B. 
are  evidence  of  a  partnership  between  them  :  ChainpUn  v.  Tilley,  3  Day  303. 
When  the  defendant,  a  mortgagee,  asserted  that  he  had  paid  the  debts  of  a 


ENTRIES  IN  THE  USUAL  COURSE  OF  BUSINESS.  494 

eight  shares  of  ITudson's  Bay  stock,  bought  in  tlie  name  of  Mr. 
Lahe,  were  bought  in  trust  for  Sir  S.  Evans,  his  assigns,  (the  plain- 

mortgap;or  to  a  certain  amount  as  the  consideration  of  the  mortnjage  deed ;  and 
the  plaintiif  resisted  the  claim  and  produced  evidence  to  prove  that  large  sums 
of  money  had  been  received  by  the  defendant,  which  had  not  Ijeen  credited  to 
him,  the  plaintifiF,  or  accounted  for  •,  but  the  defendant  alleged  that  all  such 
sums  had  been  duly  accounted  for,  by  credits  given  in  a  settlement  between  him 
and  the  mortgagor,  in  proof  of  which  he  offered  in  court  his  books  of  account, 
purporting  to  be  settled  and  signed  by  the  parties  ;  it  was  held  that  such  books 
were  admissible  :  Cook  v.  Swan,  5  Conn,  140  ;  see  also  Hutchinson  v.  Ilosmer,  2 
Conn.  341.  In  Connecticut  the  law  upon  this  subject  seems  to  differ  from  that 
of  every  other  State.  Thus  it  has  been  there  held  that  the  admission  of  the 
parties  to  testify  in  an  action  of  book  debt,  is  founded  on  a  supposed  necessity : 
yet  this  necessity  is  not  the  necessity  of  the  individual  case  on  trial,  but  of  the 
class  of  cases  to  which  it  belongs:  Peck  v.  Ahhe,  11  Conn.  207.  And  though 
the  parties  in  book  debt  are  not  unlimited  witnesses  ;  yet  the  rule  restricting 
their  testimony  to  the  quantity,  quality  and  delivery  of  the  articles  charged, 
however  plausible  in  theory  has  not  been  sanctioned  by  practice  or  established 
by  precedent.  If  there  be  any  general  rule  it  is  that  where  proper  articles  are 
charged  in  a  book,  the  parties,  quoad  the  book  debt,  are  admissible  like  all 
other  witnesses,  to  testify  freely  and  fully  in  support  or  confutation  of  the  ac- 
count: Ibid.  In  an  action  of  book  debt  brought  by  A.  against  B.  and  C.  as 
partners,  for  goods  delivered  and  charged  to  B.,  C.  denied  the  partnership  ;  to 
prove  which  A.  introduced  a  writing  signed  by  C,  accompanied  by  proof  that 
he  frequented  the  shop  and  made  entries  in  the  books  and  that  his  name  ap- 
peared on  a  sign  in  front  of  the  shop.  To  disprove  such  partnership,  C.  then 
offered  himself  as  a  witness,  to  testify,  that  he  was  not  a  partner ;  that  the 
writing  was  never  delivered,  but  was  obtained  surreptitiously ;  and  to  explain 
why  he  frequented  the  shop  and  wrote  in  the  books  and  suffered  his  name  to  ap- 
pear upon  the  sign — and  it  was  held  that  such  testimony  of  C.  was  admissible, 
as  going  to  disprove  the  plaintiff's  account  and  the  delivery  of  the  goods  to  C. : 
Ibid.  So  also  it  has  been  decided  in  the  same  State  that  the  shop-book  of  an 
insolvent  debtor,  who  has  assigned  his  property  in  trust  for  the  benefit  of  his 
creditors,  kept  by  one  of  the  trustees,  who  was  also  a  cestui  que  trust,  is  proper 
evidence,  in  an  action  brought  by  such  trustee  against  a  third  person,  in  con- 
nection with  other  proof  of  a  debt  due  from  the  assignor  to  the  trustee  and  the 
state  of  the  accounts  between  them  :  De  Forest  v.  Bacon,  2  Conn.  633. 

How  proved.  When  a  party  would  support  his  book  account  by  his  own  oath, 
it  seems  that  the  oath  must  be  administered  in  court,  and  that  his  testimony 
cannot  be  taken  in  the  form  of  a  deposition  out  of  court :  Freep  v.  Basher  et  al., 
2  Pick.  65.  The  absence  of  a  witness  from  the  State,  so  far  as  it  affects  the 
admissibility  of  secondary  evidence,  has  the  same  effect  as  his  death.  The 
handwriting  of  a  plaintiff  who  has  made  original  entries  of  charge  in  a  book, 
and  who  is  absent  from  the  State  may  be  proved,  and  upon  such  proof  the 
entries  are  admissible :  Alter  v.  Berghaus,  8  Watts  77.  But  an  account  pur- 
porting to  be  drawn  out  by  the  party  himself  from  his  original  and  daily 
minutes,  is  not  admi.^sible  in  evidence,  although  the  book  from  which  such 
statement  might  have  been  copied  has  been  burnt  or  destroyed  by  accident: 


494  PRIVATE     DOCUMENTS. 

tiffs)  showed,  first,  that  there  was  no  entry  in  the  books  of  Mr. 
Lahe  reLating  to  this  transaction  ;  secondly,  that  six  of  the  receipts 
were  in  the  handwriting  of  Sir  *S'.  Evans,  and   there  was  a  reference 

Prince  v.  Smith,  supra.  Thoucrh  if  in  such  case  there  be  proof  that  the  items 
of  the  account  drawn  out  had  actually  existed  in  the  party's  book,  where  his 
daily  transactions  were  minuted,  and  that  the  transcript  had  been  truly  taken 
therefrom,  the  transcript  might  be  admitted  upon^the  ground  of  necessity,  and 
that  it  is  the  best  evidence  of  which  the  case  will  admit  under  all  the  circum- 
stances :  Ibid.  And  when  a  party's  own  book,  with  his  supplementary  oath 
are  competent  evidence  to  prove  the  charges  therein  contained,  secondary  evi- 
dence of  the  contents  is  admissible,  in  case  the  books  are  lost  or  destroyed : 
Holmes  v.  Marsden,  12  Pick.  169. 

Requisites  to  admissihility .  1st.  Time  when  entries  must  have  been  made. 
The  entries  must  be  made  at  the  delivery  of  the  goods  or  immediately  afterwards, 
and  the  object  of  the  entry  must  have  been  to  charge  the  other  party  :  Rhoads  v. 
Gaul,  4  Rawle  404 ;  Can-en  v.  Crawford,  4  S.  &  R.  5 ;  Rogers  v.  Old,  5  Ibid. 
404;  Kaughley  v.  Breivster,  16  Ibid.  133.  Where  a  plaintiff  made  an  entry  of 
goods  sold,  upon  a  card  with  pen  and  ink,  and  the  same  evening  or  the  next  day 
transcribed  it  into  a  book,  that  is  to  be  considered  as  the  book  of  original  entries 
of  the  plaintiif  and  may  be  read  in  evidence  to  the  jury:  Patton  v.  Ryan,  4 
Rawle  408  ;  see  also  Inyraham  v.  Bockius,  9  S.  &  R.  285.  But  entries  made  by 
a  party  on  loose  scraps  of  paper  carried  in  his  pocket  for  several  days,  without 
any  reason  given  to  account  for  the  irregularity,  cannot  be  received  :  Vicary  v. 
Moore,  2  "Watts  451 ;  see  also  Kessler  v.  McConachy,  1  Rawle  435.  It  is  essen- 
tial to  this  kind  of  evidence,  that  the  charges  appearing  in  the  handwriting  of 
the  party,  are  in  such  a  state  that  they  may  be  presumed  to  have  been  his  daily 
minutes  of  his  business  and  transactions,  in  which  regard  is  had  to  the  degree  of 
education  of  the  party,  the  nature  of  his  employment  and  the  manner  of  his 
charges  against  other  persons :  Prince  v.  Smith,  supra.  Memoranda  made  upon 
a  slate  and  transcribed  into  a  book  five  or  six  days  afterwards,  are  not  such 
original  entries  as  can  be  submitted  to  a  jury  as  evidence.  Nor  will  any  pre- 
vailing custom  make  them  evidence :  Forsyth  v.  Norcross,  5  Watts  432.  En- 
tries in  a  day-book,  in  order  to  their  validity  as  evidence  of  a  charge,  must  be 
made  as  to  time  in  the  ordinary  course  of  the  business  in  which  he  is  engaged, 
who  makes  the  charge.  If  they  be  delayed  over  one  day,  they  are  not  legal  evi- 
dence to  charge  a  defendant,  unless  under  peculiar  circumstances  :  Walter  v. 
Bollnian,  8  Watts  544.  In  an  action  by  a  blacksmith  to  recover  a  claim  for 
work  done,  the  plaintiff  produced  a  book  containing  entries,  some  of  which  he 
swore  were  made  by  himself  not  later  than  the  second  day  in  the  evening  after 
the  work  was  done,  and  were  partly  taken  from  a  slate  and  partly  from  his  own 
head.  A  witness  was  also  produced,  who  testified  that  he  made  some  of  the 
entries  by  copying  them  from  the  plaintiff's  slate  on  the  evening  of  the  day  on 
which  they  were  made  or  in  the  course  of  the  next  day  ;  Held,  that  the  book 
was  admissible  in  evidence  :  Hartley  v.  Brooks,  6  AVhart.  189  ;  see  also  Coggs- 
well  V.  DoUiver,  2  Mass.  217. 

2d.  What  is  a  book  of  original  entries  ?  A  tradesman's  book  of  accounts  veri- 
fied by  his  own  oath,  was  received  in  evidence,  although  kept  in  the  ledger  form, 
and  iiltliough  it  appeared  from  his  own  showing  that  he  first  made  the  charges 


ENTRIES  IN  THE  USUAL  COURSE  OF  BUSINESS.  494 

on  the  back  of  them  by  Jeremy  Thomas,  Sir  S.  Evans's  book-keeper, 
to  the  book  B.  B.  of  Sir  S,  Evans.     J.    Thomas  was   proved  to   be 

upon  a  slate,  and  after  transferring  them  to  his  book,  rubbed  them  off  the  slate  : 
Faxon  v.  Hollis,  13  Mass.  437.     See  also  cases  cited  supra. 

3d.  Form  and  appearance  of  book.  Shop-books  verified  by  the  oath  of  the 
part}"-,  though  not  kept  regularly  in  the  manner  of  a  day-book,  are  competent 
evidence,  with  the  supplementary  oath  of  the  party,  if  living,  to  prove  the  items 
charged  and  the  jury  are  to  judge  of  their  credit :  Coggswell  v.  Dolliver,  Faxon 
V.  Hollis,  siqyra.  But  where  a  tradesman's  day-book  contains  marks  which 
show  the  items  transferred  to  his  ledger,  the  ledger  must  be  produced  that  the 
other  party  may  have  the  advantage  of  any  items  entered  therein  to  his  credit : 
Bince  v.  Swett,  2  Mass.  569.  But  the  court  will  not  permit  to  go'to  the  jury 
entries  made  on  the  first  leaf  of  a  tradesman's  book  before  the  first  page  :  Lynch 
V.  McHugo,  1  Bay  33.  A  mutilated  piece  of  paper,  which  appears  to  have  been 
torn  out  of  a  book,  in  which  neither  the  name  of  the  plaintiff  nor  of  the  defendant 
appears,  which  contains  no  charges  against  the  defendant,  and  which  is  unin- 
telligible without  explanation  by  the  plaintiff,  is  not  acmissible  in  evidence  as 
a  book  of  original  entries:  Hough  v.  Doyle,  4  llawle  291.  A  book  of  entries 
manifestly  erased  and  altered  in  a  material  point  cannot  be  permitted  to 
go  to  the  jury  as  a  book  of  original  entries  and  ought  to  be  rejected  by 
the  court  unless  the  party  offering  it  gives  an  explanation  which  does  away 
with  the  presumption  arising  from  its  face :  Churchman  v.  Smith,  6  Whart. 
146  ;  see  also  Frince  v.  Smith,  supra.  It  is  not  a  valid  objection  to  the  re- 
ception in  evidence  of  original  entries,  that  the  book  in  which  such  entries 
are  made  contains  other  charges  which  are  admitted  not  to  be  original :  Ices  v. 
Niles,  5  Watts  323. 

The  book  of  original  entries  of  a  party  claiming  for  goods  sold  or  work  or 
labor  done,  is  not  the  best  or  only  evidence  of  the  claim  ;  which  may  be  proved 
aliunde;  Adams  v.  Col.  Steamboat  Co.,  3  Whart.  75.  When  the  plaintiff  in  an 
action  of  book  debt  for  the  purpose  of  discrediting  the  defendant's  account,  of- 
fered evidence  to  show  that  the  defendant  was  generally  reputed  to  keep  inaccu- 
rate, false  and  fraudulent  accounts,  and  that  the  defendant's  books  kept  by  him 
were  generally  reported  to  be  inaccurate,  false  and  fraudulent,  and  deficient  in 
carefulness,  integrity  and  truth  ;  it  was  held  that  such  evidence  was  inadmissi- 
ble :  Roberts  v.  Ellsworth,  11  Conn.  290. 

Sewall,  J.,  in  Coggsivell  v.  Dolliver,  thus  sums  up  the  law  upon  the  subject : 
"  Books  offered  as  evidence  may  be  rejected  by  the  court  as  incompetent  or  when 
admitted  may  be  treated  as  unworthy  of  credit.  I  recollect  but  two  cases  of 
objections,  which  have  been  allowed  against  books  as  rendering  them  incompe- 
tent evidence.  To  be  admitted  in  evidence  they  must  appear  to  contain  the  first 
entries  or  charges  by  the  party,  made  at  or  near  the  time  of  the  transaction  to 
be  proved,  and  when  the  contrary  is  discoverable  upon  the  face  of  the  book  or 
comes  out  upon  the  examination  of  the  party,  they  ought  to  be  rejected  as  in- 
competent evidence.  Fraudulent  appearances  or  circumstances  such  as  material 
and  gross  alterations,  false  additions,  &c.,  are  also  objections  to  the  competency 
of  the  book  in  which  they  a,re  discoverable  or  against  which  they  may  be  proved 
in  any  manner.  Objections  to  the  credit  of  books  admitted  in  evidence  are  of 
various  kinds,  which  there  is  no  occasion  to  enumerate.     The  method  in  which 


494  PRIVATE     DOCUMENTS. 

dead,  and  the  Court  of  K.  B.,  on  a  trial  at  bar,  admitted  the  book 
so  referred  to,  not  only  as  to  the  six,  but  likewise  as  to  the  other 
two  in  the  hands  of  Sir  Biby  Lake,  the  son  of  Mr.  Lahe.'^ 
r*4.Q'"1  *^^^  ^^®  ^^^®  ^^  Smartle  v.  Williams,  where  the  question 
was  whether  certain  mortgage-monej  had  really  been  paid, 
a  scrivener's  book  of  accounts  (the  scrivener  being  dead)  was  held 
to  be  good  evidence  of  payment.'' 

■  B.  N.  P.  282.  And  here  it  may  be  remarked,  that  although  the  statute  7 
Jac.  I.,  c.  12,  enacts  that  a  shop-book  shall  not  be  evidence  after  the  expiration 
of  a  year,  it  does  not  therefore  make  it  evidence  within  the  year,  except  under 
special  circumstances  (2  Salk.  690)  ;  and  that  in  some  cases  it  is  evidence  after 
the  expiration  of  the  year. 

*•  B.  N.  P.  283  •,  in  this  case  it  does  not  appear  that  the  attorney  had  admitted 
the  payment  of  the  money  by  the  entry  in  his  book  ;  but  most  probably  such 

the  book  has  been  kept,  as  when  the  charges  to  be  proved  have  been  entered  to 
a  particular  account  like  the  entries  of  a  ledger,  and  not  like  those  of  a  day- 
book, is  an  objection  to  the  credit  of  the  book.  The  one  method  leaves  a  greater 
opening  to  fraud  and  falsehood  than  the  other.  M. 

A  blacksmith's  day-book  of  entries  transferred  from  a  slate  is  competent : 
Ewart  v.  Mori-ell,  5  Harring.  126  ;  Sandis  v.  Turner,  14  Cal.  573;  Whitnejj  v. 
Saivi/er,  11  Gray  242.  A  book  is  admissible  though  the  entry  was  made  upon 
information  received  from  one  who  did  the  work  :  Bailey  v.  Barnelly,  23  Ga. 
582;  Jackson  v.  Evans,  8  Mich.  476.  A  party's  books  are  evidence  to  charge  an 
after-discovered  principal,  although  the  entry  be  against  the  agent :  Smith  v. 
Jessvp,  5  Ilarring.  121.  A  book  is  not  incompetent  although  some  of  the  entries 
are  falsified:  Goseunch  v.  Zehley,  5  Harring.  124.  Upon  the  production  of  mu- 
tilated books,  it  is  proper  for  the  jury  to  consider  their  appearance,  and  among 
other  things,  any  evidence  they  present  of  a  fraudulent  alteration  :  Pittsjield  v. 
Barnstead,  40  N.  11.,  477.  The  general  character  of  a  book  of  original  entries 
may  be  shown  to  impeach  its  credibility  :  Funk  v.  Ely,  9  Wright,  444. 

And  see  further,  Bland  v.  Warner,  65  N.  C.  372 :  Kennedy  v.  Crandall,  3 
Lans.  1  ;  Goxild  v.  Conway,  59  Barb.  355;  Neville  v.  Northcott,  7  Cald.  294; 
Hart  V.  Livinyston,  29  Iowa,  217;  Kelton  v.  Hill,  58  Me.  114;  Adams  v.  Coul- 
liard,  102  Mass.  167  ;  Burkson  v.  Goodman,  32  Tex.  229;  Halliday  v.  Butt,  40 
Ala.  178  :  Moody  v.  Roberts,  41  Miss.  74;  Leisman  v.  Otto,  1  Bush  225.  Book 
entries  made  from  information  of  others  are  inadmissible  :  Thomas  v.  Price,  30 
Md.  483.  See  liigys  v.  Weise,  24  Wis.  545.  As  to  books  of  deceased  person  con- 
taining charges  of  goods  sold  and  delivered,  sec  Hoover  v.  Gehr,  12  P.  F.  Smith 
136.  When  entries  are  made  by  mistake  in  a  wrong  name,  they  may  be  used 
against  the  party  interested  :  Schettler  v.  Jones,  20  Wis.  412.  As  to  physician's 
books  of  entries,  see  Clarke  v.  Smith,  46  Barb.  30.  As  to  pass-books,  see  Hovey 
V.  Thompson,  37  111.  538.  Entries  in  partnership-books,  when  evidence  against 
copartners,  sec  Clement  v.  Mitchell,  1  Phill.  (Eq.)  3  ;  Kahn  v.  Bolte,  39  Ala.  66. 
L'nless  it  appears  that  a  partner  has  been  denied  access  to  the  partnership  books, 
the  cntrieK  are  evidence  for  and  against  each  partner:  Hallcr  v.  Williamowicz 
23  Ark.  500. 


ENTRIES  IN  THE  USUAL  COURSE  OF  BUSINESS.  495 

So,  in  Champneys  v.  Pech^"  tlic  plaintiff,  in  order  to  prove  the 
delivery  of  his  bill  as  an  attorney,  proved  the  death  of  Datvling, 
who  had  been  his  clerk,  and  produced  the  bill,  with  an  endorsement 
on  it  in  the  handwriting  of  the  deceased  clerk,  "March  4th,  1815, 
delivered  a  copy  to  Mr.  Peck."  The  plaintiff  furtlier  proved  that 
the  indorsement  existed  at  the  time  when,  according  to  its  purport, 
the  bill  had  been  delivered;  that  it  was  tlie  business  of  Bawling  to 
deliver  the  bill;  and  that  such  an  indorsement  was  usually  made  in 
the  common  course  of  business  upon  the  copy  kept.  Lord  Ellen- 
borough  held  this  to  be  primd  facie  evidence  of  the  delivery  of  the 
bill,  and  the  plaintiff  had  a  verdict.^  Again,  in  Doe  dem.  Pattes- 
hall  V.  Turford,^  instructions  having  been  given  to  an  attorney,  B., 
to  give  the  defendant  notice  to  quit,  he  told  his  partner,  who  pre- 
pared three  notices  and  three  copies,  and  went  out  and  returned  in 
the  evening,  when  he  delivered  to  B.  the  three  copies,  on  one  of 
Avhich,  being  the  copy  of  that  to  defendant,  was  a  memorandum  by 
him  that  it  had  been  served  on  defendant.  It  was  shown  to  be  the 
invariable  *practice  of  the  clerks  in  this  office,  when  they  r^iq/^-i 
served  notices  to  quit,  to  endorse  a  memorandum  on  the 
duplicate  of  the  fact  and  time  of  service.  After  the  partner's  death 
this  was  admitted  as  evidence  of  the  facts  endorsed.  So,  in  Poole  v. 
Bicas,^  where  a  notary's  clerk  had  at  the  time  of  presenting  a  bill, 
which  was  dishonored,  made  a  memorandum  in  the  notary's  books, 
in  the  usual  course  of  business,  of  such  dishonor :  it  was  held  admis- 
sible after  his  death. 

In  Chambers  v.  Bernasco7ii,^  however,  the  action  was  brought  by 
the  plaintiff  to  try  the  validity  of  a  commission  of  bankruptcy  issued 
against  him.  He  had  been  arrested  on  the  9th  of  November,  1825, 
and  it  was  a  question  material  to  the  act  of  bankruptcy,  whether  he 

was  the  fact,  and  therefore  this  case  would  appear  to  be  referrable  to  the  class 
of  entries  against  interest,  supra,  p.  480. 

■^  1  Stark.  C  (2  E.  C.  L.  R.)  4U4.  An  agent  employed  to  execute  an  order  of 
removal,  after  returning  from  so  doing,  signed  an  endorsement  on  the  order  to 
the  effect  that  he  had  executed  it,  and  the  court  held,  that,  assuming  such  en- 
dorsement to  be  i-equired  and  made  in  the  usual  discharge  of  the  duty  of  re- 
moval, it  was  admissible  to  prove  the  execution  :  Ji.  v.  Diikiiifiehi,  11  Q.  B.  (63 
E.  C.  L.  R.)  678. 

"^  The  cause  was  undefended.  The  ruling  of  Lord  Ellenborough  in  this  case 
has  been  questioned  more  than  once,  but  seems  now  to  be  fully  confirmed. 

«  3  B.  &  Ad.  (23  E.  C.  L.  R.)  890. 

'  1  Bing.  N.  C.  (27  E.  C.  L.  R.)  649.  And  see  Marks  v.  Lahee,  3  Bing.  N.  C. 
(32  E.  C.  L.  R.)  208. 

8  1  C.  &  J.  451. 


496  PRIVATE     DOCUMENTS. 

had  been  arrested  in  South  Molton  Street,  or  at  his  cottage,  Maida 
Hill,  Paddington.  In  order  to  establish  an  act  of  bankruptcy  by 
keeping  a  house,  &c.,  at  Paddington,  the  officer  who  arrested  the 
plaintiflf  being  dead,  his  follower  was  called,  who  swore  that  the  ar- 
rest took  place  at  Paddington.  Tbe  plaintiff,  to  establish  an  arrest 
in  South  Molton  Street,  offered  in  evidence,  from  the  files  of  the 
office  of  the  under-sheriff  of  Middlesex,  a  paper  annexed  to  the  writ, 
signed  by  the  deceased  officer,  and  addressed  to  the  under-sheriff  of 
Middlesex,  as  follows  : 

"  9th  Nov.,  1825.  I  arrested  H.  Chambers  in  South  Molton  Street, 
at  the  suit  of  W.  B." 

By  the  course  of  the  office  the  officer  was  required,  immediately  after 
the  arrest,  and  before  taking  a  bail-bond,  to  transmit  to  the  sheriff's 
office  a  memorandum,  or  certificate  of  the  arrest ;  and  for  the  last 
few  years,  (but  not,  as  it  seems,  at  the  time  of  the  arrest,)  an  account 
of  the  place  of  arrest  had  also  been  required  from  him.  On  such 
returns  the  officer  and  his  sureties  were  charged  by  the  sheriff,  and 
returns  were  made  upon  them ;  the  evidence  was  admitted,  and  the 
r*4Q71  pl^i'^tiff  ^^d  ^  verdict.  Upon  a  *motion  for  a  new  trial  it 
was  contended,  on  the  part  of  the  plaintiff,  that  the  docu- 
ment was  admissible,  as  being  a  written  declaration  of  a  fact  made 
by  a  person  peculiarly  cognizant  of  the  fact,  and  against  his  interest. 
The  Court  of  Exchequer  held,  that  the  evidence  was  inadmissible. 
Lord  Lyndhurst,  C.  B.,  was  of  opinion  that  the  principle  contended 
for  went  beyond  the  former  cases.  Bayley,  B,,  was  of  opinion  that 
the  instrument  was  not  admissible  in  evidence  at  all,  inasmuch  as  the 
entry  could  not  be  said  to  militate  against  the  interest  of  the  officer : 
and  he  also  intimated  his  further  opinion,  that  although  the  instru- 
ment was  admissible,  it  would  not  be  admissible  to  prove  the  circum- 
stance of  the  place  where  the  arrest  occurred,  as  it  was  no  part  of 
the  officer's  duty  to  state  the  jjlace  where  the  caption  took  place. 
Upon  a  writ  of  error*"  on  a  bill  of  exceptions  afterwards  tendered, 
the  Court  of  Exchequer  Chamber  supported  this  view,  and  Lord  Den- 
man,  C.  J.,  in  delivering  the  opinion  of  tlie  court,  said  they  were  "all 
of  opinion  that  whatever  effect  may  be  due  to  an  entry  made  in  the 
course  of  an  office,  reporting  facts  necessary  to  the  performance  of  a 
duty,  the  statement  of  other  circumstances,  however  naturally  they 
may  be  thought  to  find  a  place  in  the  narrative,  is  no  proof  of  those 
cii-cumstanccs."  The  ground,  then,  on  which  the  evidence  in  this 
case  was  rejected,  was,  that  the  officer  had  gone  beyond  the  sphere 

"  1  C.  M.  &  K.  347  ;  and  see  Lloyd  v.  Wait,  I  Phill.  01. 


PROOF     OF    PRIVATE    DOCUMENTS.  497 

of  his  office,  or  at  least  that  there  was  no  duty  cast  on  him  of  enter- 
ing the  place  of  arrest,  and  it  was  rejected  simply  upon  that  ground, 
leaving  the  general  principle  of  the  admissibility  of  entries  in  the 
course  of  duty  untouched.' 

In  order  to  prove  a  lease  of  lands  to  H.  and  assignments  by  him 
to  P.,  and  by  P.  to  Sir  E.  C,  and  that  the  land  was  parcel  of  a 
manor,  an  old  book  found  in  the  muniment  room  of  the  party  to 
whom  the  manor  belono-ed  was  produced.  *Amonffst  other 
entries  and  receipts  in  the  writing  of  the  then  steward,  this  ^  -' 
book  contained  an  entry  of  the  lease,  which  was  an  under-lease, 
reciting  a  lease  from  the  lord,  and  a  minute  that  '^  IT.'s  widow  hath 
assigned  to  Sir  J5.  C,  who  yet  claimeth  ten  years  to  come."  The 
book  was  held  to  be  not  receivable  in  evidence,  as  there  was  no  suffi- 
cient evidence  that  it  was  part  of  the  dutt/  of  the  steward  to  make 
an  entry  of  the  terms  of  such  a  lease.'' 

The  duty,  it  would  also  appear,  must  spring  from  some  relation 
recognized  by  law.  Thus,  an  entry  in  a  book  kept  at  the  Great 
Synagogue  of  the  Jews  in  London,  made  by  the  chief  rabbi,  in  the 
course  of  his  functions,  of  his  having  performed  the  rite  of  circum- 
cision upon  a  child  (which  by  the  Jewish  law  must  be  performed  on 
the  eighth  day  after  birth),  was  held  by  Lord  Denman,  C.  J.,  after 
conference  with  Patteson,  J.,  not  to  be  receivable  in  evidence  on  an 
issue  as  to  the  age  of  the  party.^ 

And,  as  already  suggested,  the  entry  should  be  made  contempora- 
neously by  one  cognizant  of  the  facts,  and  who  does  not  derive  his 
information  merely  from  third  persons.  Hence,  where  it  was  the 
duty  of  a  workman  in  a  coal  pit  to  give  notice  to  the  foreman  of  all 
coal  sold,  and  of  the  foreman  to  enter  it  in  the  books,  but  the  foreman 
not  being  able  to  write  employed  B.  to  make  the  entries  for  him  by 
his  direction,  who  every  evening  read  the  entries  over  to  him  ;  it  was 
held  that  these  entries,  produced  by  B.  were  not  evidence  after  the 
death  of  the  workman  and  foreman,  of  the  delivery  of  the  coals."* 

Next,  as  to  the  proof  of  private  documents.  The  proof  of  a  deed, 
agreement,  or  other  instrument  is  either,  First,  by  witnesses  ;  Sec- 
ondly, by  admission ;    or,  Thirdly,  by  enrolment.     If  by  witnesses, 

*  See  per  Tindal,  C.  J.,  and  Park,  J.,  Poole  v.  Dicas,  1  Bing.  N.  C.  (27  E.  C. 
L.  R.)  649  ;  De  Rutzen  v.  Farr,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  53. 

^  Doe  dem.  Padwich  v.  Skinner,  3  Ex.  84';  s.  p.  in  error,  20  L.  J.  297. 

'  Davis  V.  Lloyd,  1  C.  &  K.  (47  E.  C.  L.  R.)  275. 

'^  Brain  v.  Preece,  11  M.  &  W.  773.     The  book  was  not  signed  by  the  work- 
man, or  shown  to  have  been  ever  seen  by  him. 
30 


499  PRIVATE     DOCUMENTS. 

the  instrument  must  be  produced,"  *or  be  proved  to  have 

r*4991  1  • 

*-         -■    been  lost^  or  destroyed,  or  to  be  legally  unattainable,"  or  in 

the  possession  of  the  adversary,P  or  in  the  custody  of  the  Court  of 

Chancery,'*  &c.     If  produced,  it   is  either  attested   or  not  attested. 

If  attested,  the  attesting  witness  must  be  called,""  or  his  absence  must 

be  accounted  for,'  and  his  handwriting  proved ;'  or  it  must  appear 

that  the  instrument  is  thirty  years  old,"  and  came  out  of  the  proper 

custody."  ^    If  it  be  not  attested,  the  handwriting  of  the  obligor  should 

be  proved."'     If  it  has  been  lost,  or  destroyed,  or  so  situated  that  its 

production  cannot  be  enforced,  proof  must  be  given  of  the  fact,''  and 

that   it  was  regularly  stamped    and   executed,^  and  then  secondary 

evidence  must  be  given  of  its  contents.^     If  it  be  in  the  adversary's 

possession,  proof  must  be  given  of  such  possession,  and   of  notice*  to 

produce  it,  and  of  its  regular  execution  (except  in  some  particular 

instances),  and  of  its  contents. *" 

In   order   to  prove  a  deed,  agreement,  or  other  private  document, 

°  Infra,  pp.  499,  500. 

"  If  the  instrument  be  in  the  custody  of  a  third  person,  its  production  is 
usually  enforced  by  means  of  a  Avrit  of  subpoena  duces  tecum.  And  in  this 
case,  of  course,  notice  to  the  opposite  party  to  produce  will  not  entitle  the  other 
to  give  secondary  evidence:  Whitford  v.  Tutin,  10  Bing.  (25  E.  C.  L.  R.) 
369.      For   the    proceedings    upon    this   writ    see  the  title,    Subpcena    duces 

TECUM. 

p  In  many  instances  the  court  will  assist  a  party  in  obtaining  an  inspection 
or  copy  of  the  instrument,  on  motion.  See  14  &  15  Vict.  c.  90,  and  tit. 
Inspection. 

1  Secondary  evidence  was  held  to  be  inadmissible  of  a  letter  filed  in  the  Court 
of  Chancery,  it  being  in  the  power  of  either  party  to  produce  it  on  application 
to  the  court:  Williams  v.  Munnings,  Ry.  &  M.  (21  E.  C.  L.  R.)  18.  So,  where 
a  document  had  been  deposited  in  Chancery,  and  an  order  made  for  delivering 
it  to  the  party,  it  was  held  to  be  so  far  within  his  control  that  on  his  not  pro- 
ducing it  secondary  evidence  might  be  given :  Bush  v.  Peacock,  2  M.  &  Rob. 
162. 

•■  Infra,  p.  503,  504,  et  seq.  '  Infra,  p.  512,  et  seq. 

'  Infra,  p.  519.  "  Infra,  p.  521 . 

"  Infra,  p.  524.  "  Infra,  p.  529. 

*  Infra,  p.  530.  ^  Mfra,  p.  541. 

'  Infra,  p.  542.  *  Infra,  p.  561,  565. 

''Infra,  p.  541,  576. 

'  The  enactment  of  a  law  which  allows  parties  to  be  witnesses  does  not  change 
the  rule  that  the  execution  of  an  instrument  under  seal  must  be  proved  by  the 
Hubscriljing  witness:  Iladnell  v.  Smith,  2  Sweeny  401  ;  10  Abb.  Pr.  N.  S.  86; 
41  How.  Pr.  190;  K(dmes  v.  O'errish,  7  Nev.  31.  As  to  what  is  prima  facie 
evidence  of  a  document,  see  Grannies  v.  Irwin,  39  Ga.  22. 


PROOF    OF     PRIVATE    DOCUMENTS.  500 

it  is  necessary  first  to  produce  the  deed,  or  to  *excuse  the  r^rnA-i 
omission  by  proof  that  it  has  been  lost  or  destroyed,  or  is  in 
the  hands  of  the  adversary,  who  has  had  notice  to  produce  it:  for 
the  best  evidence  of  the  contents  of  a  written  instrument  consists  in 
the  actual  production  of  the  instrument ;"  and  secondary  evidence  of 
it  cannot  be  admitted,  until  the  impossibility  of  producing  it  has 
been  manifested  to  the  Court.*^  Where  the  deed  has  been  pleaded 
with  a  profert,  the  production  cannot  be  supplied  by  proof  of  the 
party's  inability  to  produce  the  deed/ 

If,  upon  production  of  an  instrument,  any  rasure  or  blemish 
appear  upon  its  face,  the  party  producing  it  ought  to  explain  how  the 
defect  arose,^  and  to  show  *that  it  was  made  before  the  exe-  r^rn-i-i 
cution,  or  that  it  was  made  after  the  delivery,  by  a  stranger, 

*  Printed  copies  of  statements  of  annual  accounts  of  a  turnpike  trust  produced 
from  the  office  of  the  clei-k  of  the  peace  (to  which  the  orif^inals  signed  by  the 
chairman  had  been  returned  pursuant  to  3  Geo.  IV.  c.  126,  s.  78),  are  not  ad- 
missible in  an  action  against  the  trustees,  without  showing  the  originals  to  have 
been  lost  or  destroyed  :  Pardoe  v.  Price,  13  M.  &  W.  2G7. 

^  In  some  cases,  however,  where  the  deed  has  been  enrolled,  an  examined 
copy  of  the  enrolment  is  evidence :  see  Enrolment.  And  a  duplicate  original 
is  evidence,  as  in  the  case  of  an  attorney's  bill  :  Anderson  v.  May,  2  B.  &  P. 
237  ;  see  also  Vol.  II.,  tit.  Notice  ;  Jory  v.  Orchard,  2  B.  &  P.  SU.  A  bill  of 
exchange  must  be  produced  in  order  to  prove  its  identity  with  one  admitted  to 
have  been  received  by  the  defendant,  and  paid  into  his  banker's,  although  no 
other  had  been  received  by  the  banker :  Atkins  v.  Owen,  2  Ad.  &  E.  (29  E.  C. 
L.  R.)  35. 

®  Smith  V.  Woodward,  4  East  585.  In  such  case  the  party  who  has  made 
the  profert  should  move  to  amend  before  the  trial :  Ibid.  It  will  be  too  late  to 
make  the  application  at  Nisi  Prius  :  1  Stark.  C.  (2  E.  C.  L.  II.)  74.  The 
counterpart  will,  however,  suffice,  if  executed  as  alleged  :  Pearse  v.  Morrice,  3 
B.  &  Ad.  (23  E.  C.  L.  R.)  396  ;  but  see  Pitman  v.  Woodbury,  3  Ex.  4. 

^  Henman  v.  Dickenson,  5  Bing.  (15  E.  C.  L.  R.)  183 ;  B.  N.  P.  255 ;  Clifford 
V.  Parker,  2  M.  &  G.  (40  E.  C.  L.  R.)  909.  And  where  the  alteration,  e.  g.,  on 
a  bill  is  evident,  it  has  been  held  that  it  cannot  be  left  to  the  jury  upon  bare 
inspection  to  say  whether  it  was  made  before  or  after  the  bill  was  made  : 
Knight  v.  Clements,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  215.  These  were  all  cases,  it 
may  be  observed,  of  bills  or  notes.  It  has,  however,  been  recently  held  by  the 
Court  of  Q.  B.,  that  where  erasures  and  interlineations  appear  upon  a  deed,  the 
presumption  is  that  they  were  made  at  the  time  of  execution,  for  fraud  is  not  to 
be  presumed,  and  the  judge  is  to  leave  it  to  the  jury,  upon  the  deed  itself, 
whether  they  were  then  made  or  not :  Doe  dem.  Tatham  v.  Cattermore,  20  L. 
J.,  Q.  B,,  364.  But,  in  order  to  render  explanation  necessary,  the  fact  of  the 
instrument  having  been  altered  must  in  general  be  pleaded:  see  Hemming  v. 
Trenery,  9  Ad.  &  E.  (36  E.  C.  L.  R.)  926  ;  and  tit.  Bill  of  Exchange— Deei>— 
Policy — Will. 


501  PRIVATE     DOCUMENTS. 

if  tbc  rasure  or  interlineation  has  been  made  in  an  immaterial 
point. ^  If  the  deed  appear  to  be  mutilated,  it  is  primd  facie  evi- 
dence of  cancellation  ;''  but  proof  may  be  given  that  the  cancelling 
r*^0'>n  ^^^  ^^  accident,'  or  that  it  was  *effected  by  fraud  and  im- 
proper practice.''  If  in  the  course  of  the  inquiry  the  time 
of  the  delivery  should  become  material,  it  should  be  proved  by  the 
attesting  witness,  if  there  be  one,  and  if  not,  the  date  of  the  deed 
will  be  evidence  of  the  time  of  delivery.'  If  the  erasure  existed 
previously,  the  fact  may  be  proved  by  any  person  who  saw  it;  but 
the  state  of  the  deed  at  the  time  of  its  execution  is  best  proved  by 

«  A  material  alteration  in  an  instrument,  whether  made  by  a  party  or  a 
stranger,  is  fatal  to  its  validity,  and  it  cannot  be  enforced  by  action  ;  but  any 
estate  conveyed  by  it  is  not  affected,  inasmuch  as  that  passed  at  the  time  of 
execution,  and  cannot  be  affected  by  anything  subsequent :  Davidson  v.  Cooper^ 
11  M.  &  W.  778  ;  Doe  v.  Bingham,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  672  ;  and  there- 
fore it  may  be  given  in  evidence  to  prove  a  right  created  by  its  having  been 
executed,  or  any  collateral  fact:  Agriculturist  Cattle  Insurance  Company  v. 
Fitzgerald,  20  L.  J.,  Q.  B.  244.  By  agreement  between  the  plaintiff  and  de- 
fendant, a  house,  therein  mentioned  as  No.  38,  was  agreed  to  be  let  to  the 
plaintiff,  but  the  plaintiff  entered  and  occupied  No.  35,  which  was  the  house 
really  meant,  and  the  agreement  after  delivery  was  altered,  it  was  not  known 
by  whom,  by  changing  38  to  35  on  an  erasure  ;  it  w.as  held  admissible  to  show 
the  terms  of  the  holding  :  Hutchins  v.  Scott,  2  M.  &  W.  809.  So  in  Lord  Falmouth 
v.  Roberts,  9  M.  &  W.  469,  where  the  defendant  held  as  tenant  from  year  to  year 
on  the  terms  of  an  agreement  as  to  tillage,  &c.,  which,  upon  being  produced, 
appeared  originally  to  have  contained  a  habendum  for  seven,  which  had  been 
altered  to  fourteen  years,  the  document  was  held  admissible  without  explana- 
ation,  as  the  alteration  could  not  make  the  defendant  hold  according  to  the 
custom  of  the  county,  and  the  term  was  immaterial. 

''  See  as  to  the  effect  of  cancellation.  Vol.  II.,  tit.  Deed  ;  Doe  v.  Bingham,  4 
B.  &  Aid.  (6  E.  C.  L.  R.)  672.  The  insertion  by  a  stranger  of  "  hundred"  be- 
tween "one"  and  "pounds"  in  the  condition  of  a  bond,  consistent  with  the 
obvious  sense,  and  which  could  not  alter  its  operation,  is  immaterial  :  Waugh 
v.  Bussell,  1  xMars.  311  ;  5  Taunt.  (1  E.  C.  L.  R.)  707.  Semble,  that  a  letter, 
a  considerable  part  of  which  appears  obliterated,  is  not  evidence  :  1  Anst.  227  ; 
Shep.  Touch.  68. 

'Palm.  403;  1  Mod.  11;  R.  v.  SIdbthwaite.  Certificate  of  1774,  from  the 
parish  chest,  one  of  the  names  of  the  allowing  justices  was  wanting  ;  the  cer- 
titicatc  being  in  a  torn  and  decayed  state,  the  court  held  that  the  finding  of  the 
justices  below  of  the  due  making  of  tlie  certificate  wiis  conclusive  of  the  fact: 
Mich.  1833.  Or  that  it  was  done  under  a  mistake:  Perrott  v.  Perrott,  14  East 
4'i3. 

*  Iletl.  138,  Beckrow's  case. 

'  Sindair  v.  liaggalej/,  4  M.  &  W.  312;  Anderson  v.  Weston,  6  Bing.  N.  C. 
(37  E.  C.  L.  R.)  29(5 ;  Poicz  v.  Glossop,  2  Ex.  191.  But  see  an  exception  where 
it  is  tendered  as  proof  of  tlie  petitioning  creditor's  debt,  in  Wright  v.  Lainson, 
2  M.  &  W.  743. 


PRODUCTION.  502 

an  attesting  witness,  if  he  recollects  it.  Where  a  deed  operates  as 
to  different  parties  from  the  time  of  execution  by  each,  it  will  be 
binding  on  one  who  conveys  by  that  deed,  if  complete  as  to  him 
at  the  time,  although  it  has  been  executed  by  another  party  at  a 
time,  when  blanks  were  left  which  were  immaterial   to  that   party."* 

"  A  mortgagee  conveyed  to  the  mortgagor  the  legal  estate,  on  being  paid  the 
mortgage  money,  and  the  latter  reconveyed  to  trustees  to  secure  the  payment  of 
an  annuity  ;  at  the  time  of  execution  by  the  mortgagee  the  deed  contained 
blanks  for  sums  to  be  received  by  the  mortgagor  from  the  grantees  of  the 
annuity,  and  these  were  all  filled  up  before  the  execution  of  the  deed  by  the 
mortgagor,  but  several  interlineations  were  made  in  that  part  of  the  deed  after 
the  execution  by  the  mortgagee.  It  was  held  that  the  whole  might  be  con- 
sidered as  one  transaction,  operating  as  to  the  different  parties  from  the  time  of 
execution  by  each  ;  and  that  the  deed  operated  as  a  good  conveyance  of  the 
estate  from  the  mortgagor  to  the  trustees :  Doe  v.  Bingham,  4  B.  &  Aid.  (6  E. 
C.  L.  R.)  672;  Hall  v.  Chandless,  4  Bing.  (13  E.  C.  L.  R.)  123  ;  and  see  West 
v.  Steward,  14  M.  &,  W.  47.  Where  a  blank  was  left  in  a  composition  deed  at 
the  time  of  execution,  in  order  to  ascertain  the  amount,  but  tilled  up  the  next 
day  and  signed,  a  re-execution  was  presumed:  Hudson  v.  Revett,  5  Bing.  (15 
E.'C.  L.  R.)  368;  Spicery.  Burgess,  1  C,  M.  &  R.  129;  and  see  West  v.  Steward. 
But  in  general,  an  instrument  under  seal  containing  blanks  in  a  material  point, 
which  are  afterwards  filled  up  by  a  third  person,  even  with  the  consent,  though 
not  under  seal  of  the  executing  party,  is  wholly  void,  and  can  neither  pass  an 
interest,  nor  be  enforced  as  a  deed  against  him :  Hibhlewhite  v.  McMorine,  6  M. 
&  W.  200. 

^  In  Prevost  v.  Gratz,  Peters  C.  C.  369,  and  in  Morris  v.  Vanderen,  1  Dall.  67, 
it  was  held  that  the  legal  presumption  is,  that  an  alteration  or  erasure  in  an 
instrument  was  made  after  its  execution.  In  regard  to  negotiable  paper,  it 
seems  to  be  settled  that  an  alteration  apparent  on  the  face  of  a  bill  or  note  is 
presumed  to  have  been  made  subsequent  to  execution  and  delivery :  Hills  v. 
Barnes,  11  N.  H.  395;  Warren  \.  Lay  ton,  3  Harring.  404 ;  Simpson  \.  Stack- 
house,  9  Barr]86;  ClarTc  v.  Eckstein,  10  Harris  507  ;  though  there  are  cases 
which  decide  that  the  question  is  still  one  of  fact  to  be  left  to  the  jury  :  Crab- 
tree  V.  Clark,  7  Shepl.  337 ;  Davis  v.  Carlisle,  6  Ala.  707 ;  Bank  v.  Lnm,  7  How. 
Miss.  414 ;    Wilson  v.  Henderson,  9  S.  &  M.  375. 

As  to  deeds  and  other  papers,  there  are  cases  both  ways.  That  the  party 
producing  must  explain  what  appears  to  be  an  erasure :  Herrick  v.  Malin,  22 
Wend.  388  ;  Tillon  v.  Ins.  Co.,  7  Barb.  S.  Ct.  564 ;  Acker  v.  Ledyard,  8  Ibid. 
514;  Jordan  v.  Steivart,  11  Harris  244;  Burnham  v.  Ayer,  35  N.  H.  351. 
Contra,  Bliss  v.  Mclntyre,  18  Vt.  466  ;  Mattheics  v.  Coalter,  9  Mo.  705  ;  Beaman 
\.  Eussell,  20  Vt.  205 ;  Smith  v.  McGowan,  3  Barb.  S.  Ct.  404;  Simpsun  v. 
Stackhouse,  9  Barr  186 ;  North  River  Meadow  Co.  v.  Shrewsbury  Church,  2  N. 
J.  424;  Wikoff^s  Appeal,  3  Harris  281 ;  Boothbyv.  Stanley,  34  Me.  115;  Printup 
V.  Mitchell,  17  Ga.  558  ;  Reed  v.  Kemp,  16  111.  445  ;  Stoner  v.  Ellis,  6  Ind.  152; 
Maybee  v.  Sniffen,  2  E.  D.  Smith  1.  Where  an  alteration  is  suspicious,  and 
beneficial  to  the  holder  of  the  instrument,  the  party  seeking  to  enforce  it  is 
required  to  explain  it  before  he  can  recover ;  but  where  such  is  not  the  nature 


503  PRIVATE     DOCUMENTS. 

r*^0'R1  *■'■*'  ^^^"^*^  appear,  on  the  production  of  the  instrument, 
that  it  is  properly  stamped ;"  and  where  a  stamp  is  required, 
the  objection  for  the  want  of  one  ought  to  be  taken  in  that  stage, 
and  before  the  document  is  read.  Although  enrolment  of  the  deed 
be  essential,  it  is  not  incumbent  on  the  party  who  relies  on  the  deed 
to  prove  the  enrolment ;  it  lies  on  the  party  objecting  to  prove  the 
negative." 

The  next  step  is  to  prove  the  legal  requisites  essential  to  the  ex- 
istence of  the  document  as  a  deed,  simple  contract,  bill  of  exchange, 
will,  or  other  instrument. ^  Circumstances  necessary  to  make  a  doc- 
ument evidence  must  be  proved  aliunde,  and  not  from  the  document 
itself.  In  order,  for  example,  to  make  entries  by  a  corporator  evi- 
dence, it  must  be  first  shown  by  other  evidence  that  he  was  a  corpo- 
rator.'' 

r*cA4n  If  the  deed  or  instrument  produced  purport""  to  have  *been 
I  *5U4J  \  \    ' 

attested   by   one   or   more   witnesses,  whose  names  are  sub- 
scribed," the  party  must  call   at  least   one   of  the  witnesses ;   and  in 

°  See  tit.  Stamps,  and  tit.  Bills  of  Exchange,  &c.  As  to  compelling  the  pro- 
duction of  documents  for  the  purpose  of  inspection,  or  of  procuring  them  to  be 
stamped,  see  Vol.  II.,  tit.  Inspection.  The  general  rule  is,  that  the  court  will 
not  make  such  an  order  unless  the  applicant  be  either  an  actual  party  to  the 
instrument  or  a  party  in  interest :  Ibid.  Nor  then  where  each  has  his  own 
part.  In  an  action  between  A.  and  B.,  the  court  refused  a  rule  to  compel  B.  to 
produce,  for  the  purpose  of  being  stamped,  an  agreement  between  B.  and  C, 
although  it  appeared  by  the  affidavit  of  C.  that  the  act  complained  of  by  A. 
arose  out  of  this  agreement:  Lawrence  v.  Hooker,  5  Bing.  (15  E.  C.  L.  R.)  6. 

0  Doe  V.  Bingham,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  672. 

P  In  general,  for  the  particular  proof,  see  the  title  of  the  instrument  itself. 

1  Dacies  v.  Morgan,  1  Cr.  &  J.  587.  See  Banhury  Peerage  case,  2  S.  N.  P.  76.3  ; 
Adamihu-ate  v.  Synge,  1  Stark,  C.  (2  E.  C.  L.  R.)  183  ;  Freeman  v.  Phillips,  -i 
M.  &  S.  486. 

■■  Where  an  agreement  contained  an  attestation  clause,  and  subjoined  to  it  the 
name  of  a  person  as  an  attesting  witness,  but  the  name  was  written  in  pencil 
by  one  of  the  parties,  and  not  by  the  supposed  witness,  it  was  considered  that 
there  was  no  j^rinid  facie  evidence  of  any  attestation,  that  it  was  unnecessary 
to  call  the  supposed  witness,  and  that  the  execution  of  the  parties  might  be 
proved  by  other  means:   Cussons  v.  Skinner,  11  M.  &  W.  161. 

"  Where  the  seal  of  the  Bank  of  England  had  been  affixed  by  a  paper  wafered 
to  an  indenture,  on  which  paper  was  written,  "  Sealed  by  order  of  the  Court  of 
Directors  of  the  Governor  and  Company  of  the  Bank  of  England,  12th  December 
1833.  A.  B.,  Secretary,"  it  was  held  that  it  did  not  appear  that  A.  B.  was  an 
attesting  witness.     The  statement  was  considered  to  be  a  mere  memorandum 

of  the  alteration  it  will  be  presumed  to  have  been  made  either  before  the  exe- 
cution of  tiie  paper  or  by  the  consent  of  the  parties:  Huntington  y.  Finch,  3 
Ohio  (N.  S.)445. 


PRIVATE     DOCUMENTS.  504 

cases  Avliere  the  instrument  labors  under  any  doubt  or  suspicion,  he 
ought  to  call  them  all.  The  law  requires  the  testimony  of  the  sub- 
scribing witness,  because  the  parties  themselves,  by  selecting  him  as 
the  witness,  have  mutually  agreed  to  rest  upon  his  testimony  in  proof 
of  the  execution  of  the  instrument,  and  of  the  circumstances  which 
then  took  place,  and  because  he  knows  those  facts  whicli  are  proba- 
bly unknown  to  others."  So  rigid  is  this  rule,''  that  it  has  been  held 
not  to  be  superseded  by  a  memorial  of  a  purchase-deed,  registered 
in  Middlesex  under  7  Anne,  c.  20,  even  against  the  ^parties 
registering  :^  nor  in  the  case  of  an  agreement  to  submit  to  ^  '  J 
arbitration,  by  a  rule  of  court  reciting  it,  made  under  9  &  10  Will. 
III.,  c.  15,  without  calling  the  attesting  witness  ;*  and  it  was  for- 
merly held  not  to  be  superseded  in  the  case  of  a  deed,  by  proof  of  any 
admission  or  acknowledgment  of  the  execution  by  the  party  himself  j"^  ^ 

that  the  party  signing  was  the  person  deputed  to  affix  the  seal :  Doe  d.  Bank  of 
England  v.  Chambers,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  412.  And  where  in  compli- 
ance with  a  rule  of  the  Court  of  Bankruptcy,  an  attorney  has  attested  an  insol" 
vent's  petition  for  protection  under  5  &  6  Fict.  c.  116,  and  the  Bankruptcy 
Court  has  acted  upon  it,  he  is  not  an  attesting  witness  within  the  rule,  so  as  to 
require  him  to  be  called  to  prove  the  petition:  Bailey  v.  Bidwell,  13  M.  &  W. 
73.  But  here  the  petition  had  been  acted  upon  by  the  Court,  was  authenti- 
cated by  its  seal,  and  was  used  to  prove  the  mere  fact  that  a  petition  had  been 
presented.  If  the  schedule  be  used  to  show  an  admission  by  the  insolvent,  the 
attesting  attorney  must  be  called :  Streeter  v.  Bartlett,  5  C.  B.  (57  E.  C.  L.  R.) 
562. 

'  Doe  V.  Durnford,  2  M.  &  S.  62 ;  E.  v.  Harringworth,  4  M.  &  S.  350 ;  Greg  v. 
Smgthes,  Burr.  2275 ;  Breton  v.  Cope,  Peake,  C.  30.  The  defendant  would 
otherwise  be  deprived  of  the  opportunitj'  of  cross-examining  the  witness  as  to 
the  time  of  execution.     Per  Ashhurst,  J.,  in  Abbot  v.  Flumbe,  Doug.  215. 

'  Formei'ly  (as  has  already  been  observed,  supra),  it  was  the  practice  to  try 
the  existence  of  a  disputed  deed  per  patriam  et  testes ;  that  is,  the  witnesses  to 
the  deed  were  sworn  as  part  of  the  jury. 

^  Doe  dem.  Loscowhe  v.  Clifford,  2  C.  &  K.  (61  E.  C.  L.  R.)  448. 

*  Berney  v.  Read,  7  Q.  B.  (53  E.  C.  L.  R.)  79,  ante,  p.  304. 

''  Abbot  V.  Plumbe,  Doug.  216.  Although  the  acknowledgment  be  made  in 
court:  Johnson  v.  Mason,  1  Esp.  C.  39;  vide  etiam,  Laing  v.  Eaine,  2  B.  &  P. 
85.  See  the  observations  of  Buller,  J.,  on  the  case  oi  Abbot  v.  Pliunbe,  6  T.  R. 
367  ;  and  of  Lord  Ellenborough,  E.  v.  Harringioorth,  4  M.  &  S.  350 ;  Jones  v. 
Breirer,  4  Taunt.  46.  The  attesting  witness  must  be  called,  although  he  be  the 
real  party  in  the  cause :  Honegivood  v.  Peacock,  3  Camp.  196.  But  payment  of 
money  into  court  on  one  of  the  breaches  of  covenant  assigned,  amounts  to  an 
admission  of  the  deed,  although  non  est  factum  has  been  pleaded :  Eandall  v. 
Lynch,  2  Camp.  357.     And  admissions  are  binding  which  are  made  by  a  party 

^  Fox  et  al.  v.  Eeil  et  al.,  3  Johns.  477 ;  Clements  &  Co.  v.  Eason  et  al.,  1 
Hayw.  18  ;  Johnson  v.  Knight,  1  Cas.  Law  Rep.  93,  ace.    So  in  case  of  a  receipt : 


505  PRIVATE     DOCUMENTS. 

whether  the  action  was  brought  against  the  obligor  himself,  or  against 
his  assignees  after  his  bankruptcy,"  nor  by  proof  of  any  admission  of 
the  execution  made  by  the  defendant  in  his  answer  to  a  bill  in  equity.^ 

But  upon  consideration  the  courts  have  held,  that  *admis- 

r*5061  .  ■ 

'-         -J    sions   by  a  party  bound,  when   used  against   himself,  do  not 

fall  within   the  reason   of  the  rule   which   forbids    the   reception    of 

secondary  evidence  until  the  absence  of  primary  evidence  has  been 

satisfactorily  accounted  for.     That  reason  is,  that  the  introduction  of 

secondary  evidence  when  primary  can  be  produced,  the  former  being 

in   its   nature  derived  from  the  latter,  necessarily  raises  a  suspicion 

that  the  latter  would  have  been  unfavorable  to  the  party  who  does  not 

produce  it.     To  what  a  party  himself  admits  to  be  true,  it  is  obvious 

that  this  reason  does  not  apply  ;*  and,  therefore,  admissions  made  by 

or  his  attorney,  with  a  view  to  the  trial  of  the  cause ;  therefore,  if  the  deed  be 
admitted  on  a  summons  and  judge's  order,  proof  of  the  execution  of  it  will  be 
dispensed  with.  Admissions  thus  made,  or  admissions  agreed  on  between  the 
parties  for  the  purposes  of  the  cause,  are  conclusive  and  irrevocable :  Wilkes  v. 
Hopkins,  1  C.  B.  (50  E.  C.  L.  R.)  7?.7  ;  La7iglei/  v.  Lord  Oxford,  1  M.  &  W. 
508  ;  Elton  V.  Larkins,  1  M.  &  Rob.  196 ;  Doe  v.  Bird,  7  Car.  &  P.  (32  E.  C.  L. 
R.)  6.     See  tit.  Admissions,  pos^. 

'  Abbot  V.  Plumbe,  Doug.  215. 

^  Call  V.  Dunning,  4  East  53.  See  Bowles  v.  Langworthy,  5  T.  R.  3G6  ;  R.  v. 
Mlddlezoy,  2  T.  R.  41,  The  question  arising  whether  the  plaintiff  in  equity  had 
demised  certain  tithes  to  a  third  party,  the  plaintiff  admitted  an  exhibit,  being 
a  notice  by  him  of  such  demise,  and  another  exhibit  as  a  true  copy  of  the  lease 
referred  to  in  the  notice :  it  was  held  in  equity  that  the  notice  did  not  relieve 
the  defendant  from  the  necessity  of  calling  the  attesting  witness,  as  the  admis- 
sion of  the  copy  did  not  put  the  party  in  a  better  situation  than  if  the  original 
had  been  produced :  Mounsey  v.  Burnham,  1  Hare  15. 

*  Slatterlie  v.  Pooley,  6  M,  &  W.  664 ;  Howard  v.  Smith,  3  M.  &  G.  (42  E.  C. 

Pearl  v.  Allen,  1  Tyler  4.  In  New  York  it  has  been  decided,  in  the  case  of  a 
promissory  note,  that  it  may  be  proved  by  the  maker's  confession,  without  call- 
ing the  subscribing  witness :  Hall  v.  Phelps,  2  Johns,  451.  In  Willoughby  v. 
Carleton,  9  Johns.  136,  it  was  decided  that  a  deed  could  not  be  proved  by  the 
grantee  in  an  action  to  which  he  was  not  a  party,  without  accounting  for  the 
absence  of  the  subscribing  witness,  because  the  opposite  party  had  a  right  to 
cross-examine  him.  That  subscribing  witness  must  be  called,  whatever  be  the 
instrument;  see  Hagland  v.  Sebring,  2  South.  103;  Williams  v.  Davis,  1  Penn. 
177;  January  v.  Goodman,  1  Dall.  208;  Hechert  v.  Huine,  6  Binn,  16;  even 
though  the  instrument  be  lost:  McMahan  v,  McGrady,  5  S.  &  R.  314.  M. 

Where  the  subscribing  witness  has  become  disqualified,  testimony  of  his 
handwriting  is  sufficient :  Kecfer  v.  Zimmerman,  22  Md.  274.  A  deed  properly 
acknowledged  or  proved  to  entitle  it  to  record  is  admissible  in  evidence  :  Hol- 
brook  V.  Nichol,  30  111.  161.  Where  deeds  are  required  to  be  recorded,  the 
record-books  themselves  are  evidence  :  Morrill  v.  Gclston,  34  Md.  413  ;  Sheehan 
V.  Davis,  17  Ohio  St.  571. 


PROOF    BY    ATTESTING    WITNESS.  506 

a  party  are  evidence  against  him  of  the  contents  of  a  document  with- 
out producing  it  or  calling  the  attesting  witness. 

Thus  in  Boulter  Y.  Peplow/  a  memorandum  signed  by  the  plaintiffs, 
endorsed  on  a  copy  of  the  deed  of  settlement  of  a  company,  which 
was  in  the  following  terms,  "  We  do  hereby  certify  that  the  within- 
written  deed  is  the  *deed  of  settlement  of  the  Universal  Gas- 
light Company,  and  that,  to  the  best  of  our  knowledge,  the  ^  -" 
particulars  therein  contained  are  correctly  set  forth,"  was  held  to 
render  the  copy  primary  evidence  against  the  plaintiffs  of  the  con- 
tents of  the  deed.  So  the  execution  of  a  deed  is  suflBciently  proved 
as  against  the  assignor  of  it,  by  proof  of  the  assignment  by  him  con- 
taining a  recital  of  it ;  as  in  an  action  against  a  sheriff  for  taking 
insufficient  pledges  in  replevin,  the  assignment  of  the  replevin  bond 
by  the  sheriff  being  admitted,  it  was  held  unnecessary  to  call  the 
attesting  witness  to  the  bond.^ 

The  general  rule  as  to  the  necessity  for  producing  the  document 
and  proving  it  by  the  attesting  witness  applies  whether  the  question 
be  between  the  parties  to  the  deed,  or  strangers  ;^  whether  the  deed 
be  the  foundation  of  the  action,  or  but  collateral ;'  or  whether  it  still 
exist  as  a  deed,  or  has  been  cancelled  ;^  and  although  the  issue  be 
directed  by  a  Court  of  Equity  to  try  the  date,  and  not  the  existence 
of  a  deed.^  Upon  an  indictment  against  an  apprentice  for  a  fraudu- 
lent enlistment,  it  was  held  that  the  indentures  must  be  proved  in  the 

L.  R.)  254 ;  Xing  v.  Cole,  2  Ex.  628  ;  Toll  v.  Lee,  4  Ex.  230 ;  Miirrai/  v.  Gregory, 
5  Ex.468;  and  see  Vol.  II.,  tit.  Admissions.  Such  admissions  are  evidence, 
thou<!;h  they  relate  to  a  deed  which  is  produced,  but  is  inadmissible  because  it  is 
not  properly  stamped  :  Slatterlie  v.  Fooley.  It  does  not,  however,  render  the  in- 
strument itself  admissible  where  the  statement  merely  is  as  to  its  contents  or 
operation  ;  and  the  party  using  the  admission  cannot  correct  any  erroneous  ver- 
sion it  may  present,  without  calling  the  attesting  witness,  and  putting  in  the 
document :  Toll  v.  Lee.  And  where  an  action  was  brought  upon  an  agreement 
between  the  plaintiffs  and  the  defendants,  as  modified  by  a  memorandum  of  even 
date  endorsed  upon  it,  which  memorandum  expressly  referred  to  it  as  the  within- 
mentioned  agreement :  the  plaintiffs  at  the  trial  duly  proved  the  part  of  the  mem- 
orandum executed  by  the  defendants,  and  it  was  held  on  a  bill  of  exceptions 
by  the  Exch.  that  they  might  then  read  the  original  agreement  without  calling 
the  attesting  witness.  In  this  case  the  court  considered  the  memorandum,  not 
as  an  admission  by  the  defendants  of  the  agreement,  but  as  itself  an  agreement 
incorporating  the  original  one  by  reference :  Fishmongers''  Comp.  v.  Dimsdale 
and  others,  6  C.  B.  (60  E.  C.  L.  R.)  896. 

f  19  L.  J.,  C.  P.  190  ;  Pritchard  v.  Bagshaw,  20  L.  J.,  C.  P.  161. 

8  Plumer  v.  Brisco,  11  Q.  B.  (63  E.  C.  L.  R.)  46. 

^  4  East  53.  »  Manners  v.  Postan,  4  Esp.  239. 

^  Breton  v.  Cope,  Peake,  C.  30. 

'  Edinburgh  v.   Crudell,  2  Stark.  C.  (3  E.  C.  L.  R.)  284. 


507  PRIVATE     DOCUMENTS. 

regular  way.™  And  the  same  rule  applies  to  all  written  agreements, 
and  other  instruments  attested  by  a  witness,  as,  for  instance,  a  notice 
to  quit  in  ejectment,"  in  which  case  it  was  held,  the  proof  of  the 
notice  upon  the  tenant,  and  that  it  was  read  over  to  him  without  his 
making  any  objection,  was  not  sufficient. 

Where  the  plaintiff  avers  that  the  defendant  was  bound 
L  J  *by  an  indenture,  the  fact  may  be  proved  by  the  production 
and  proof  of  the  execution  of  the  part  executed  by  the  defendant." 
Where  the  subscribing  witness  is  called  to  prove  the  execution 
of  the  deed,  the  proof  consists.  First,  of  the  sealing ;  Secondly,  of 
the  delivery.  First,  the  sealing,  need  not  be  with  the  seal  of  the 
obligor,  and  not  have  been  actually  made  at  the  time ;  it  is  sufficient 
if  the  obligor  acknowledge  any  impression  already  made  to  be  his 
seal  ;P  and  it  seems  that  one  piece  of  wax  will  suffice  for  several  obli- 
gors, if  they  make  distinct  and  several  prints  upon  it.''  In  Lord  Love- 
lace s  case,''  it  was  said  that  if  one  of  the  officers  of  the  forest  put 
one  seal  to  the  rolls  by  the  assent  of  all  the  verderers  and  other 
officers,  it  is  as  good  as  if  every  one  had  put  his  several  seal ;  as  in 
the  case  divers  men  enter  into  an  obligation,  and  they  all  consent, 
and  set  but  one  seal  to  it,  it  is  a  good  obligation  of  them  all.  And 
if  one  partner,  in  the  presence  of  the  other,  seal  and  deliver  a  deed 
of  sale  for  both,  it  is  binding  upon  them  both.^  Where  a  deed  is 
executed  under  some  special  authority,  which  prescribes  the  mode 

"^  R.  V.  Jones,  E.  P.  C.  822  ;  B.  v.  Earringworth,  4  M.  &  S.  350.  So  in  arson, 
with  intent  to  defraud  the  insurers,  the  policy  must  be  produced  and  proved : 
Doraii's  case,  1  Esp.  127  ;  R.  v.  Gibson,  1  Taunt.  98. 

°  Doe  V.  Durnford,  2  M.  &  S.  62  ;  Stone  v.  Metcalf,  1  Stark.  C.  (2  E.  C.  L.  R.) 
53.  See  also  Higgs  v.  Dixon,  2  Stark.  C.  (3  E.  C.  L.  R.)  180,  where  the  same 
was  held  as  to  an  attested  warrant  to  distrain. 

"  Burleigh  v.  Stihbs,  5  T.  R.  465 ;  Roe  v.  Davis,  7  East  363  ;  Doe  v.  Pubnan, 
3  Q.  B.  (43  E.  C.  L.  R.)  622.  In  an  action  by  the  lessor  against  the  assignee  of 
the  lessee,  the  plaintiff  having  proved  the  execution  of  the  counterpart,  and  that 
the  original  had  been  delivered  over  to  the  defendant,  it  was  held  that  he  was 
not  bound  to  prove  the  execution  of  the  original,  which  was  produced  by  the  de- 
fendant out  of  the  hands  of  a  third  person,  to  whom  he  assigned  it  over  by  a 
deed  reciting  the  original  lease:  Burnett  v.  Lynch,  5  B.  &  C.  (11  E.  C.  L.  R.) 
589.  It  is  not  competent  to  a  party,  who  has  taken  under  a  deed  all  the  interest 
which  it  gives,  to  dispute  its  due  execution  :  Ibid.  ;  Doe  v.  Wainwright,  5  Ad. 
&  E.  (31  E.  C.  L.  R.)  520.     But  see  Pitman  v.  Woodbury,  3  Ex.  4. 

P  Com.  Dig.,  tit.  Fait. 

''  Shep.  Touchst.  57  ;  Perkins,  c.  2,  s.  134. 

'  Sir  W.  Jones,  268. 

'  Ball  V.  Dunsterville,4T.  R.  313  ;  Cooch  v.  Goodman,  2Q.  B.  (42  E.  C.  L.  R.) 
580 ;  but  sec  Harrison  v.  Jackson,  7  T.  R.  207. 


PROOF     OF     SEALING     OF     A     DEED.  508 

and  form  of  execution,  the  execution  will  not  be  valid  unless  those 
requisites  be  observed.  Thus,  where  a  certificate  under  the  statute 
8  &  9  Will.  III.,  c.  30  (which  requires  certificates  to  be  *under 
the  hands  and  seals  of  the  churchwardens  and  overseers,  or  ^  '  -^ 
the  major  part  of  them,  or  under  tlie  hands  and  seals  of  the  overseers, 
where  there  are  no  churchwardens),  was  signed  by  two  churchwardens 
and  one  overseer,  but  bore  two  seals  only,  the  court  held  that  it  was 
not  a  valid  certificate.  They  said  that  it  was  the  case  of  an  execu- 
tion of  a  power,  and  that  in  the  execution  of  powers  all  the  circum- 
stances required  by  the  creators  of  the  power,  however  unessential 
and  otherwise  unimportant,  must  be  observed,  and  can  only  be  satisfied 
by  a  strictly  literal  and  precise  performance.* 

In  the  case  of  Adam  v.  Kerr,"^  on  an  action  on  a  bond  alleged  to 
have  been  sealed,  evidence  was  admitted  to  prove  a  custom  in 
Jamaica  (where  the  bond  in  question  had  been  executed)  by  substi- 
tuting a  mark  with  a  pen  for  a  seal.  The  Court  of  Common  Pleas, 
after  a  verdict  for  the  plaintiff,  subject  to  the  opinion  of  the  court, 
granted  a  rule  7iisi  to  set  aside  the  verdict  and  enter  a  nonsuit,  but  no 
decision  was  given. ^     Proof  of  the  delivery  of  a  sealed  instrument 

*  Eex  V.  Austrey,  Easter  Term,  1817.  Hawkins  v.  Kemp,  3  East  410.  See 
tit.  Power,  and  Sir  E.  Sugden's  Treatise  on  Powers,  where  the  whole  subject  of 
Powers  is  most  skilfully  treated. 

"  1  B.  &  P.  360. 

^  In  Pennsylvania  and  Virginia  a  written  or  ink  seal  or  scrawl  is  sufficient: 
McDilVs  Lessee  v.  McDiU,  1  Dall.  63 ;  Long  v.  Ramsaij,  1  S.  &,  R.  72  ;  Jones  et 
al.  V.  Logwood,  1  Wash.  42.  But  in  the  latter  State  there  must  be  some  ex- 
pression in  the  body  of  the  instrument  to  show  that  it  was  the  intention  of  the 
parties  to  give  it  the  effect  of  a  sealed  instrument :  Baird  v.  Blaigrove,  1  Wash. 
170;  Austin\s  adm.  v.  Whitlock^s  ex''ors.,  1  Munf.  487;  Anderson  v.  Bullock  et 
al.,  4  Munf.  442.  Aliter  semble  in  Pennsylvania:  Taylor  et  al.  v.  Glazer,  2  S. 
&  R.  504.  In  the  case  of  the  United  States  v.  Coffin,  it  was  held  in  the  District 
Court  of  South  Carolina  that  a  mark  made  with  ink,  in  the  form  of  a  seal,  was 
sufficient  to  create  a  specialty,  if  acknowledged  by  the  maker  as  his  seal :  Bee 
140.  In  New  Jersey,  it  has  been  decided  that  a  written  scrawl  is  not  good  as  a 
seal,  except  upon  instruments  for  the  payment  of  money:  Overseer  of  IIo]7ewell 
V.  Overseers  of  AmweU,  1  Halst.  169 ;  see  NewhoWs  ex' or.  v.  Lamb,  2  South. 
449.  In  Warren  v.  Lynch,  5  Johns.  239,  the  Supreme  Court  of  New  York  held 
that  a  scrawl  with  a  pen  of  L.  S.  at  the  end  of  a  name  is  not  a  seal — that  a  seal 
is  an  impression  upon  wax  or  wafer  or  some  other  tenacious  substance  capable 
of  being  impressed — and  that  although  a  scrawl  might  be  considered  a  seal  and 
render  an  instrument  a  specialty,  in  the  place  where  it  was  executed,  yet  when 
sued  in  New  York,  it  must  be  treated  as  a  simple  contract  and  declared  upon 
accordingly.  M. 

The  seal  of  a  corporation  may  be  a  scrawl :  Illinois  Central  E.  R.  Co.  v. 
Johnson^  40  111.  5. 


509  PKIVATE    DOCUMENTS. 

will  be  evidence  that  the  party  adopts  and  acknowledges  the  seal  to 
be  his ;  and  proof  that  he  wrote  his  name  opposite  to  the  seal  affords 
presumptive  evidence  of  the  sealing  and  delivery  of  a  deed  in  which 
it  was  affirmed  that  he  sealed  it." 

Where  a  party  to  a  deed  has  acted  under  it  for  some  time,  and  it 
is  produced  from  his  custody,  its  execution  by  him  may  be  presumed 
against  him,  although  there  be  a  seal  only,  and  no  signature  or  attes- 
tation.^ 

No  particular  form  of  delivery  is  requisite;  it  is  sufficient  if  the 
obligor,  by  any  act,  indicate  his  intention  to  put  the  deed  into  the 
r^'im  POS'^^s^'O"  of  ^^6  other  party,  as  by  *throwing  it  down  upon 
•-  -■  the  table  for  the  other  to  take  it  up.  So  if  a  stranger  deliver 
it  with  the  assent  of  a  party  to  the  deed.""  If  the  deed  be  made  by 
a  corporate  body,  it  is  sufficient  to  prove  that  it  was  sealed  by  the 
corporate  seal  or  any  other  which  was  used  for  the  occasion,  without 
proving  a  delivery  of  the  deed.''  But  if  the  corporation,  by  their 
letter  of  attorney,  have  appointed  an  agent  to  deliver  the  deed,  it  is 
not  their  deed  till  delivery.^  ^ 

'  Talhot  V.  Hodson,  7  Taunt.  (2  E.  C.  L.  R.)  251. 

y  Cherri/  v.  Heming,  4  Ex.  633,  note ;  5  Bing.  (15  E.  C.  L.  R.)  368. 

'  Com.  Dig.  Fait,  A.  3  ;  Co.  Litt.  36  a  ;  Thoroughgood's  case,  9  Rep.  137,  a; 
Murray  v.  Earl  of  Stair,  2  B.  &  C.  (9  E.  C.  L.  R.)  82.  A  boy  and  his  father 
went  to  execute  an  apprentice-deed,  binding  the  son ;  they  desired  a  person  to 
write  their  names  opposite  to  two  seals,  which  was  done  ;  they  took  the  instru- 
ment to  the  master,  and  left  it  with  him.  This  was  held  to  be  a  sufficient 
execution  :  E.  v.  Longnor,  Inhab.,  1  N.  &  M.  (28  E.  C.  L.  R.)  576  ;  4  B.  &  Ad. 
(24  E.  C.  L.  R.)  647.  A  deed  between  two  parties  purported  to  be  under  their 
hands  and  seals.  The  signing  and  sealing  by  both  were  attested.  The  deed 
was  in  the  hands  of  the  plaintiff,  who  sued  the  defendant  on  it  in  an  action  of 
assumpsit,  and  both  parties  had  admitted  that  it  was  signed,  sealed,  and 
executed  as  it  purported  to  be.  The  court  held,  that  it  must  be  presumed  tp 
have  been  delivered,  being  produced  by  the  plaintiff,  and  therefore  did  not  sup- 
port the  action  of  assumpsit:  Hall  v.  BaUibridge,  12  Q.  B.  (64  E.  C.  L.  R.)  699. 

*  Perk.  c.  2,  s.  132.  The  name  used  must  be  the  same  in  substance  with  the 
true  name,  but  need  not  be  the  same  in  words  and  syllables :  Mayor  and  Bur- 
gesses of  Lynn,  10  Coke  124 ;  Croydon  Hospital  v.  Farley,  6  Taunt.  (1  E.  C.  L. 
R.)  467  ;  and  4  B.  &  Ad.  (24  E.  C.  L.  R.)  650. 

•*  Co.  Litt.  36,  a,  note  5. 

'  One  of  the  subscribing  witnesses  to  a  deed  did  not  recollect  that  it  was  de- 
livered, but  was  sure  that  he  should  not  have  attested  it,  unless  he  had  seen  the 
grantor  sign  and  seal  it  or  heard  him  acknowledge  that  he  had  done  so  ;  another 
did  not  recollect  the  delivery  but  was  sure  that  he  should  not  have  attested  it, 
unless  he  had  heard  him  acknowledge  it  as  his  act  and  deed  for  the  purposes 
therein  mentioned,  as  it  was  his  constant  custom  to  require  his  acknowledgment. 


PROOF     OF     DELIVERY.  510 

Although  a  party  is  under  the  necessity  of  calling  the  subscribing 
witness,"    he    is    not    concluded    by    the    testimony  of   that    witness, 

•  Jones  V.  Brewer,  4  Taunt.  46. 

The  third  was  out  of  the  country  and  the  fourth  interested,  but  their  hand- 
writini^  proved;  held  a  sufficient  attestation  of  the  deed :  Ciirrie  v.  Donald,  2 
Wash.  58.  The  execution  of  a  sealed  instrument  is  sufiSciently  proved  by  the 
production  of  the  subscribing  witnesses,  who  recognize  their  signatures  and 
remember  the  transaction,  though  neither  remembers  the  fact  of  formal  delivery : 
Miller's  estate,  3  Rawle  312.  If  the  subscribing  witnesses  are  unable  to  recol- 
lect material  circumstances,  the  testimony  of  another  person  who  was  present 
at  the  time  is  admissible  to  establish  these  facts:  Ibid.  And  where  the  witness 
to  an  instrument  offered  in  evidence  by  the  defendant  had  become  special  bail 
for  the  defendant,  it  was  held  that  the  handwriting  of  the  parties  to  the  instrument 
and  witness  might  be  proved:  Bell  v.  Cowyill,  1  Ashm.  8.  If  a  witness  become 
interested  in  the  destruction  of  an  instrument  of  writing  after  its  execution,  evi- 
dence of  his  handwriting  will  be  received :  Allen  v.  Allen,  2  Tenn.  172.         G. 

The  subscribing  witness  to  an  agreement  stated  that  he  was  called  into  the 
room  to  sign  the  paper  as  a  witness,  but  did  not  see  the  parties  execute  it,  or 
acknowledge  they  had  done  so,  but  they  told  him  it  was  their  agreement ;  this 
was  held  sufficient :  Munns  v.  Dupont,  3  Wash.  C.  C.  Rep.  42.  So  where  one 
testified  that  he  was  called  into  a  room  to  witness  the  execution  of  articles  of 
agreement  for  the  sale  of  lands  ;  that  he  did  not  see  the  vendor  sign,  seal  or 
deliver  the  papers,  but  he  saw  the  money  paid,  and  knew  the  handwriting  to  be 
that  of  the  vendor;  it  was  held  (one  judge  dissenting)  that  this  was  sufficient 
proof  to  let  the  instrument  go  to  the  jury:  Lesher''s  Lessee  \.  Levan,  2  Dall. 
So  in  Piggott  v.  Ralloxoay,  1  Binn.  436,  a  warrant  of  attorney  was  permitted  to 
go  to  the  jury,  upon  a  subscribing  Avitness  testifying  that  on  a  reference  to  his 
minutes  he  found  he  was  present  at  a  certain  place  on  the  day  of  the  date  of 
the  warrant;  that  his  name  as  attesting  witness  was  in  his  own  hand- 
writing ;  that  the  defeasance  to  the  Avarrant  was  also  in  his  own  handwriting ; 
and  that  the  impression  of  the  seal  appeared  to  be  taken  from  an  engraving  he 
then  and  still  had  ;  and  that  from  all  these  circumstances,  he  was  convinced 
that  he  was  present  and  witnessed  the  execution  of  the  instrument.  In  an 
action  on  a  sealed  bill,  proof  by  the  subscribing  witness  that  he  saw  the 
defendant  sign  his  name  to  it,  and  heard  him  admit  that  it  was  his  signature,  but 
did  not  hear  him  acknowledge  that  it  was  his  seal,  nor  see  him  deliver  it,  was 
held  sufficient  to  go  to  the  jury:  Curtis  v.  Hall,  1  South.  148  ;  see  Berks  and 
Dauphin  Turnpike  Co.  v.  Myers,  6  S.  &  R.  12 ;  Sigfried  v.  Leown,  Id.  308  ; 
Crawford  v.  State,  6  Har.  &  Johns,  231.  In  Churchill  v.  Speighfs  Ex'ors.,  2 
Hayw.  338,  where  in  an  action  on  a  single  bill,  the  subscribing  witness  swore 
that  his  name  was  in  his  handwriting,  and  that  he  attested  a  note  from  A.  to  B., 
who  assigned  it  to  plaintiif,  and  that  he  attested  no  other  ;  that  he  did  not 
believe  the  signature  to  the  note  to  be  in  A.'s  handwriting,  and  that  he  did  not 
remember  that  there  was  a  seal  to  it — it  was  left  to  the  jury  to  determine 
whether  the  evidence  was  sufficient.  In  South  Carolina,  it  is  held  that  it  is  not 
necessary  that  a  subscribing  witness  should  recollect  the  time  and  occasion 
when  he  subscribed  the  instrument,  if  he  recognizes  his  handwriting  and  is 


510  PRIVATE     DOCUMENTS. 

if  he  cannot,  or  will  not  declare  the  truth.  If  the  witness  refuses  to 
testify/  the  attestation  may  be  proved  by  another  witness.*  Where 
one  of  the  witnesses  to  a  will  would  not  swear  to  the  sealing  and  pub- 
lication, Holt,  C.  J.,  held  that  it  was  sufficient  to  prove  the  attesta- 
tion of  the  witness.^     If  the  witness  admit  *his  signature  as 

r*5ll1  •  • 

•-         -^    attesting  witness,  but  prove  that  he  did  not  in  fact  see  the 

instrument  executed,  proof  of  the  handwriting  of  the  obligor  will  be 
sufficient.^  If  the  witness  actually  deny  the  due  execution  of  the  in- 
strument, other  witnesses  may  be  called  to  contradict  him ;  and  cir- 
cumstantial evidence  is  admissible  to  prove  the  contrary.''^     So  a  wdl 

"^B.  V.  Harringicorth,  4  M.  &  S.  350;  Talbot  v.  Hodson,  7  Taunt.  (2  E.  C.  L. 
K.)  251. 

'Per  Lord  Mansfield,  Burr.  2224,  2225,  where  two  of  the  witnesses  to  a  will 
denied  their  handwriting,  and  it  was  proved  by  the  third. 

^  Daijrdl  v.  Glasscock,  vSkin.  413.  In  many  cases  the  witness  is  unable  from 
his  memory  to  speak  to  the  fact  of  execution  ;  if,  however,  he  says  that  from 
seeing  his  signature  he  is  sure  he  saw  the  party  execute,  this  is  enough : 
Maugham  \.  Huhhard,  8  B.  &  C.  (15  E.  C.  L.  E,.)  14;  Bringloe  v.  Goodson,  5 
Bing.  N.  C.  (35  E.  C.  L.  R.)  738  ;  E.  v.  St.  Martin,  Leicester,  2  Ad.  &  E.  (29  E. 
C.  L.  R.)  210. 

s  Grellier  v.  Neale,  Peake's  C.  146,  i.  e.,  if  no  other  attesting  witness  appear 
on  the  instrument;  and  see  Talbot  v.  Hodson,  7  Taunt.  (2  E.  C.  L.  R.)  251  ; 
Burrows  v.  Lock,  19  Ves.  474 ;  Lemon  v.  Bean,  2  Camp.  C.  636 ;  Fitzgei'ald  v. 
^Zrfce,  2  Camp.  C.  635 ;  Ley  \.  Ballard,  3  Esp.  C.  173,  n. ;  contra,  Phipps  v. 
Parker,  1  Cam.  412;  Boxer  v.  Rabeth,  1  Gow.  175. 

''And.  224,  per  Lord  Mansfield,  Doug.  206.  A  will  of  lands  made  before  7 
Will.  lY.  &  1  Vict.  c.  26,  was  attested  by  three  witnesses,  one  being  a  marks- 
man ;  a  person  of  the  same  name  and  supposed  to  be  this  witness,  who  was 
very  old  and  had  known  the  testator,  recollected  nothing  of  the  transaction  ; 
and  the  other  two  being  dead,  their  handwriting  was  proved.  The  will  had 
been  uncontested  for  sixteen  years.  It  was  held  that  the  jui"y  might  presume 
the  due  execution,  although  there  was  no  other  proof  of  the  devisor's  hand- 
writing or  authority.     Doe  dem.  Davies  v.  Davies,  9  Q.  B.  (58  E.  C.  L.  R.]  648. 

assured  that  he  never  subscribed  an  instrument  without  having  seen  it  duly 
executed  or  acknowledged :  Pearson  v.  Wightman,  1  Rep.  Con.  Ct.  344.  So  in 
New  Jersey,  Deiin  v.  Mason,  1  Coxe  10.  So  in  Virginia,  Currie  v.  Donald,  2 
Wash.  58. 

'  Where  a  subscribing  witness  denies  his  signature,  other  witnesses  may  be 
called  to  prove  the  execution  of  the  instrument :  Ducknall  v.  JFeat'cr,  2  Ohio 
13.  So  also  if  he  refuses  to  attend,  under  circumstances  of  fraud,  and  the 
party  has  done  all  he  can  to  procure  his  attendance :  Baker  v.  Blount,  2  llayw. 
404.  G. 

Where  a  subscribing  witness  to  a  deed  does  not  remember  its  execution,  but 
states  that  his  signature  is  genuine  and  that  it  would  not  have  been  placed  there 
unless  he  had  been  culled  to  witness  it,  this  evidence  is  sufficient  to  render  the 
deed  admissible:  Graham  v.  Lockhart,  8  Ala.  9;  Hemphill  v.  Dixon,  1  llempst. 


DENIAL     BY    ATTESTING    WITNESS.  511 

may  be  proved  by  the  evidence  of  one  witness,  although  two  of  the 
attesting  witnesses  swear  that  the  testator  was  incompetent.'  And 
where  two  witnesses  to  a  will  of  lands  swore  that  the  testator  did  not 
publish  the  will,  and  was  incapable  of  doing  so,  the  court,  upon  a 
trial  at  bar,  admitted  witnesses  to  contradict  them.''  In  the  celebra- 
ted case  of  Loive  v.  Joliffe,^  the  three  subscribing  witnesses  to  the 
testator's  will,  and  the  two  surviving  ones  to  a  codicil  made  four 
years  subsequent  to  the  will,  all  swore  that  he  was  incapable  of  mak- 
ing a  will  at  the  time  of  the  will  and  codicil,  or  at  any  intermediate 
time;  and  *yet  the  will  was  established  upon  the  testimony  p^^-ioi 
of  other  witnesses.'  ^         -^ 

*  Hudsoii's  case,  Skin.  79. 

^  And  committed  the  two  witnesses  for  perjury,  taking  security  from  the  plain- 
tiff to  prosecute  them  :  Hudson'' s  case,  Skin.  79. 
'  1  Bla.  365  ;  and  see  Pike  v.  Badmering,  Str.  1096. 

235.  A  subscribing  witness  testified  to  his  own  signature  to  a  mortgage,  and 
that  it  was  signed  and  acknowledged  by  a  person  Avho  was  introduced  to  him  as 
the  mortgagor.  Another  witness  identified  the  signature  thus  made  as  that  of 
the  mortgagor.  Held  that  the  mortgage  was  sufiiciently  proved  :  Goodhue  v. 
Berrien,  2  Sandf.  Ch.  630.  Proof  by  the  subscribing  witness  that  he  saw  the 
party  deliver  an  instrument,  already  signed  and  sealed  by  him,  is  sufficient: 
Hiygins  v.  Bogan,  4  Ilarring.  330.  The  identity  of  the  grantor  in  a  deed,  will 
be  presumed  from  proof  of  the  execution  of  the  instrument  by  one  of  the  same 
name  even  though  it  appear  that  there  are  many  others  of  that  name  :  Flournoy 
V.  Warden,  17  Mo.  435.  The  testimony  of  one  whose  name  appears  as  a  sub- 
scribing witness  to  a  deed,  executed  about  twelve  years  previously,  that  he  had 
no  recollection  of  ever  having  seen  and  attested  the  deed,  and  believes  he  never 
did,  is  not  sufficient  to  show  the  instrument  to  be  spurious,  in  opposition  to 
one  witness  who  testifies  to  its  execution  by  the  parties,  and  of  others  who 
state  corroborating  facts  :  Juzan  v.  Toulman,  9  Ala.  663  ;  Hale  v.  Stone,  14 
Ibid.  803. 

'  That  the  subscribing  witness  or  one  of  them,  if  competent,  alive  and  within 
the  jurisdiction  of  the  court  must  be  produced  :  see  Sheets  v.  DuJ'our,  5  Blackf. 
549;  Tramnell  v.  Roberts,  1  McMul.  305;  Brock  v.  Saxton,  5  Pike  708  ;  Handy 
V.  llie  State,  1  Har.  &  Johns.  42 ;  Sampson  v.  Grimes,  7  Blackf.  176  ;  Woodman 
V.  Segar,  25  Me.  90;  Mariner  v.  Saunders,  5  Gilm.  113;  Edicards  v.  Sullivan, 
8  Ired.  302  ;  Spencer  v.  Bedford,  4  Strobb.  96  ;  Jones  v.  Undericood,  28  Barb. 
481  ;  and  that  he  may  be  contradicted  and  discredited  by  the  party  calling  him  : 
Smith  V.  Ashill,  2  Strobh.  141.  If  he  forgets  or  denies  his  attestation,  other  evi- 
dence of  its  execution  may  be  resorted  to  :  Reinhart  v.  Miller,  22  Ga.  402.  Where 
names  of  persons  are  found  on  a  deed  in  the  usual  place  for  subscribing  wit- 
nesses, and  they  are  not  parties  to  the  deed,  they  will  be  presumed  to  be  wit- 
nesses to  the  instrument,  though  they  are  not  stated  to  be  such  ;  and  therefore 
where  such  a  deed  is  to  be  proved,  they  must  be  produced  or  their  absence 
legally  accounted  for:  Chaplain  v.  Briscoe,  11  S.  &  M.  372.  The  testimony  of 
one  of  the  subscribing  witnesses  to  a  deed  is  sufficient  to  prove  its  execution, 


512  PRIVATE     DOCUMENTS. 

Declarations  by  a  deceased  attesting  witness  that  he  forged  the 
instrument,  or  has  fraudulently  altered  it,  are  inadmissible.""  But 
where  some  of  the  witnesses  are  dead,  and  the  survivor  charges  them 
with  fraud  in  the  attestation,  evidence  of  their  good  character  may 
be  given  to  support  the  will." 

Where  the  instrument  purports  to  have  been  attested  by  a  witness, 
the  party  on  whom  the  proof  of  the  instrument  lies  must,  unless  the 
instrument  appear  to  be  thirty  years  old  (when  it  is  to  be  inferred 
that  the  witnesses  are  dead),  either  call  an  attesting  witness  or  show 
that  the  usual  proof  by  means  of  the  attesting  witness  has  become 
impossible.  For  this  purpose  he  may  prove  that  the  attesting  witness 
is  dead,"  has  become  blind, ^  or  insane. "^     Previous  to  the  recent  Acts, 

™  Where  there  were  two  attesting  witnesses  and  one  denied  all  recollection  of 
having  attested  the  deed,  and  doubted  the  genuineness  of  his  own  and  the 
defendant's  signatures,  and  the  other  witness  being  dead,  his  signature  and 
that  of  the  defendant  were  proved  by  other  witnesses,  declarations  of  the 
deceased  witness  that  he  had  frequently  altered  the  deed  were  held  not  ad- 
missible :  Stobart  v.  Dryden,  1  M.  &  W.  615  ;  and  see  Sussex  Peerage  case,  11 
CI.  &  F.  85. 

°  Provis  V.  Reed,  5  Bing.  (15  E.  C.  L.  R.)  435  ;  Doe  dem.  Walker  v.  Stephen- 
son, 3  Esp.  284. 

°  Barnes  v.  Tompotcski,  7  T.  R.  266.  It  seems  that  the  ordinary  presumption 
as  to  the  death  of  any  party  would  be  acted  upon.  See  Vol.  II.,  tit.  Death — 
Pedigree. 

P  Wood  V.  Drun/,  Ld.  Raym.  734;  12  Vin.  Abr.  T.  b.  48,  pi.  12;  Pedler  v. 
Paige,  1  M.  &  Rob.  258.  But  in  Crank  v.  Frith,  2  M.  &  Rob.  262,  Lord  Abin- 
ger  held  that  he  ought  to  be  called,  in  order  to  learn  whether  anything  material 
passed  at  the  execution. 

1  Bernett  v.  Taylor,  9  Ves.  381 ;  Carrie  v.  Child,  3  Camp.  283.  But  inasmuch 
as  an  insane  person  may  be  a  witness,  unless  he  is  so  devoid  of  understanding  as 
to  be  unable  to  testify :  R.  v.  Hill,  20  L.  J.,  M.  C.  222  ;  it  would  appear  that  he 

unless  the  judge  in  his  discretion  requires  the  production  of  the  others:  Burke 
V,  Miller,  7  Cus.  547  ;  White  v.  Woad,  8  Ibid.  413.  So  proof  of  the  handwriting 
of  one  witness  is  sufficient :  Burnett  v.  Thompson,  13  Ired.  379.  The  acknow- 
ledgment by  the  party  himself  that  he  executed  the  deed,  or  even  his  admission 
in  answer  to  a  bill  filed  for  discovery  has  been  held  not  to  dispense  with  the 
testimony  of  the  subscribing  witnesses  :  Ellis  v.  Smith,  10  Ga.  253.  Where  the 
name  of  a  witness  was  subscribed  by  another  without  his  knowledge  or  assent, 
the  party  is  allowed  to  prove  it,  and  the  instrument  is  treated  like  one  not  sub- 
scribed :  Ilandy  v.  The  Slate,  7  liar.  &  J.  42.  As  to  proof  of  the  handwriting 
of  a  subscribing  witness  when  he  is  dead  or  beyond  the  jurisdiction  of  the 
court:  see  Richards  v.  Skiff,  ?>  Ohio  (N.  S.)  586.  The  execution  of  an  in- 
Htrument  not  under  seal  may  be  proved  by  the  admission  of  a  party  sign- 
ing it,  although  attested  by  a  subscribing  witness  :  Giberton  v.  Ginachio,  1 
Hilt.  218. 


ATTESTING     WITNESS WHEN     DISPENSED     WITH.      512 

lie  might  have  proved  that  the  witness  was  interested  at  tlie  time  of 

the  attestation,  *which  was  therefore  a  nullity  •/  or,  that  he    ^ 

.  ^  '        '  r  5131 

had  since  the  attestation  become  so  interested, °  as  where  he    ^         -■ 

had  become  the  administrator  of  the  obligee,'  even  though  he  dis- 
qualified himself  voluntarily  by  taking  out  administration."'  But  since 
the  recent  changes  all  these  persons  are  made  competent  witnesses. 
He  might  also  prove  that  the  witness  had  married  the  person  to  whom 
the  instrument  was  given  ;"  and  he  may  still  prove  that  the  witness 
is  abroad  and  beyond  the  process  of  the  court,  whether  he  be  domi- 

ought  to  be  called  and  that  fact  ascertained  by  questioning  him,  or  that  fact 
should  be  proved  by  other  competent  evidence. 

•■  Swire  v.  Bell,  5  T.  R.  371.  But  if  a  party,  knowing  that  a  witness  was  in- 
terested, requested  him  to  attest  the  instrument,  he  could  not  afterwards  insist 
upon  the  objection  :  Honeytoood  v.  Peacock,  3  Camp.  196  ;  see  stat.  6  &  7  Vict. 
c.  85.  The  attesting  witness  to  a  will  is  competent,  although  he  be  named  a  de- 
visee or  legatee  therein :  7  AVill.  IV.  &  1  Vict.  c.  26. 

»  Swire  v.  Bell,  5  T.  R.  371.  See  also  Goss  v.  Traaj,  1  P.  W.  287;  Buckley 
v.  Smith,  2  Esp.  C.  697  ;  Godfrey  v.  Norris,  1  Str.  34  ;  Honeywood  v.  Peacock,  3 
Camp.  196.  Where  the  plaintiff  in  an  action  on  a  charter-party  had  communi- 
cated an  interest  to  a  witness  to  the  charter-party  after  the  execution  of  the  in- 
strument, it  was  held  that  evidence  of  his  handwriting  was  inadmissible  :  Hovill 
V.  Stephenson,  .')  Bing.  (15  E.  C.  L.  R.)  493. 

*  Godfrey  v.  Norris,  1  Str.  34. 
"Str.  34;  5  T.  R.  371,  supra. 

*  Buckley  v.  Smith,  2  Esp,  C.  697.     The  majority  of  the  judges  seem  to  be  of       i" 
opinion  that  a  wife,  if  objected  to,  cannot  under  14  &  15  Vict.  c.  99,  be  a  witness 

for  or  agtainst  her  husband  in  an  action  brought  by  or  against  him  ;  per  Jervis, 
C.  J.,  and  Pollock,  C.  B.,  Westminster,  November  27th.  If  she  were  a  party 
to  the  suit  she  clearly  would  be  admissible.  It  may  be  observed,  too,  that  if  the 
wife  be  inadmissible  the  husband  would  likewise  be  so,  if  the  action  were 
brought  by  or  against  the  wife,  and  he  were  not  a  party. 

^  So  when  the  witness  was,  at  the  time  of  the  attestation,  the  wife  of  the 
obligor  :  Nelins  v.  Brickell,  1  Hayw.  19  ;  and  where  the  witness's  name  was 
written  by  the  obligor  in  his  absence,  he  not  having  been  present  at  the  execu- 
tion of  the  bond :  Allen  v.  Martin,  1  Ca.  Law.  Rep.  373  ;  evidence  of  the  hand- 
writing of  the  obligor  is  to  be  given.  So  if  the  handwriting  of  the  subscribing 
witness  cannot  be  proved  :  Jones  v.  Blount,  1  Hayw.  238 ;  Clerk  v.  Sanderson,  3 
Binn.  192;  Duncan  v.  Beard,  2  N.  &  McC.  400.  Or  if  there  be  no  subscribing 
witness :  Ingram  v.  Hall,  Martin  1  ;  s.  c.  Hayw.  193  ;  Long  v.  Ramsay,  1  S.  & 
R.  72.  Or  it  may  be  erased  by  a  stranger :  Wicke's  Lessee  v.  Caulk,  5  Har.  & 
Johns.  36.  M. 

If  a  subscribing  witness  to  a  deed  voluntarily  incapacitates  himself  to  testify 
to  its  execution  by  becoming  interested  therein,  such  deed  cannot  be  proved  by 
other  evidence:  McKinley  v.  Irvine,  13  Ala.  681. 

31 


514  PRIVATE     DOCUMENTS. 

ciled  tliere  or  not/  as  in  *Ircland/  That  he  has  kept  out 
•-  -'of  the  way  at  the  instance  of  the  adversary  or  party  charged 
in  the  suit,''  or  that  the  witness  cannot  be  found  after  diligent  inquiry 
made.*' 

The  nature  of  this  inquiry  may  be  collected  from  the  following 
cases.  There  were  two  witnesses  to  a  bond  which  had  been  exe- 
cuted in  America :  it  was  proved  that  Mwington,  one  of  the  wit- 
nesses,   was  in   America;    and   to  show  that  William  Moreton,   the 

y  Prince  v.  Blackburn^  2  East  250  ;  Coghlan  v.  Williamson,  Doug.  93;  Holmes 
V.  Pontin,  Peake's  C.  99  ;  Adam  v.  Kerr,  1  B.  &  P.  360 ;  Willis  v.  Delancey,  7 
T.  R.  266;  Wardv.  Wells,  1  Taunt.  461  ;  Hodnett  v.  Forman,  1  Stark.  C.  (2 
E.  C.  L.  II.)  90.  That  he  went  abroad  two  years  ago,  and  has  not  been  heard 
of  since  :  Doe  v.  Paul,  3  C.  &  P.  (14  E.  C.  L.  R.)  613.  One  of  two  subscribing 
witnesses  was  dead,  and  the  other  had  gone  abroad  twenty  years  before  the 
trial,  and  the  witness  who  proved  the  latter  fact,  stated  that  he  had  not  heard  any- 
thing of  him  since,  but  that  he  had  applied  to  his  brother,  who  informed  hira 
that  he  did  not  know  where  he  was,  whether  in  England  or  abroad.  The  Court 
held,  that  proof  of  his  handwriting  ought  to  have  been  admitted  ;  and  Lord 
EUenborough  observed,  that  proof  of  the  fact  of  the  subscribing  witness's  going 
abroad  twenty  years  ago  (so  large  a  portion  of  a  man's  life),  and  never  having 
been  heard  of  since,  was  of  itself  sufficient:  Doe  d.  Johnson  v.  Johnson,  K.  B. 
Trin.  T.  1818.  In  Doe  d.  Powell,  7  C.  &  P.  (32  E.  C.  L.  R.)  617  ;  it  was  pro- 
posed to  show  that  a  subscribing  witness  had  stated  Avhere  he  resided  ;  and 
further,  to  show,  that  upon  inquiry  made  at  that  place,  the  answer  was  that  he 
had  gone  to  America,  and  then  to  prove  in  substance  that  some  seafaring  men 
had  said  that  they  had  seen  the  witness  in  America,  but  the  evidence  was  re- 
jected. But  see  infra,  note  [m),  and  the  cases  as  to  the  evidence  of  the  absence 
of  a  witness,  in  order  to  admit  his  deposition  or  examination  under  a  commis- 
sion, ante,  pp.  412,  4':9. 

^  Hodnett  v.  Forman,  1  Stark.  C.  (2  E.  C.  L.  R  )  90;  though  he  might  have 
been  examined  upon  interrogatories  :  Glubb  v.  Edivards,  2  M.  &  Rob.  300. 

»  Pi/tt  V.  Griffith,  6  31oore  (17  E.  C.  L.  R.)  538  ;  Burt  v.  Walker,  Spooner  v. 
Payne,  infra.  In  case  of  evidence  of  inquiries  made  after  an  attesting  witness, 
answers  made  even  by  strangei-s  to  inquiries  duly  prosecuted,  seem  in  general 
to  be  admissible  to  show  that  further  inquiry  would  be  hopeless,  or  that  such 
further  inquiry  has  been  made  as  such  answers  warrant  without  success. 
Declarations  made  by  the  attesting  witness  previous  to  his  departure,  or  letters 
from  him  since  his  departure,  tending  to  show  that  inquiry  has  been  properly 
made,  or  the  impossibility  of  procuring  the  attendance  of  the  witness  appear 
also  to  be  admissil^le.  The  evidence  in  such  a  case  is  oifered  to  the  judge,  not 
to  the  jury:  Burt  v.  Walker,  infra;  Wyatt  v.  Bateman,  7  Oar.  &  P.  (32  E.  C. 
L.  R.)  586. 

^  Cunlijfev.  Sefton,  2  East  183;  and  see  Crosby  v.  Percy,  1  Taunt.  365; 
Parker  v.  Hoskins,  2  Taunt.  223.  In  the  cane  of  a  warrant  of  attorney,  to  dis- 
pense with  the  deposition  of  the  attesting  witness,  the  nature  of  the  search, 
where  he  had  been  last  seen  or  known  to  reside,  and  when  he  was  last  heard  of, 
must  be  stated  :  Wariny  v.  Bowles,  4  Taunt.  132. 


ATTESTING    WITNESS  —  SEARCH     FOR.  515 

other    witness,    was    also    abroad,     *it    was    proved    that    a 

•  •  r*ol5T 

man  of  the  name  of  Moreton  had  lived  with  Rivlngton,  but    '-  '      -■ 

it  could  not  be  proved  that  his  name  v.'as  William,  or  tliat  at  the 
time  of  trial  he  was  not  in  England  ;  the  handwriting  of  the  other 
witness  was  proved,  and  Lord  Kenyon  held  that  it  was  reasonable 
evidence  to  go  to  a  jury."  The  clerk  of  the  defendant  was  the  sub- 
scribing witness  to  a  bond,  and  when  he  was  subpoenaed,  said  that  he 
would  not  attend,  and  the  trial  had  been  put  off  twice  in  consequence 
of  his  absence  :  search  had  also  been  made  at  the  defendant's  house 
and  in  the  neighborhood,  and  upon  receiving  information  at  the 
defendant's  that  the  witness  was  gone  to  Margate,  inquiry  was  there 
made  without  success  ;  it  was  held,  that  under  these  circumstances, 
evidence  of  his  handwriting  was  admissible/  Where  an  attorney's 
clerk  was  attesting  witness,  and  his  master  could  give  no  account  of 
him,  although  at  the  trial  he  recollected  where  he  might  probably 
be  found,  proof  of  his  handwriting  was  admitted.*  The  attesting 
witness  to  the  deed  was  the  son  of  the  defendant,  and  a  student  at 
St.  George's  Hospital,  where  he  was  in  the  habit  of  attending  lec- 
tures. Inquiries  were  made  for  him  there  by  a  person  who  waited 
for  him  several  hours  on  seven  different  occasions;  inquiries  were 
also  made  for  him  at  several  places  where  he  had  resided,  and  re- 
peatedly at  his  father's  house,  where  a  subpoena  had  been  shown  to 
bis  mother  and  brother,  but  no  information  could  be  obtained  from 
them.  The  defendant  had  also  been  summoned  to  admit  the  exe- 
cution, or  declare  where  the  witness  was,  but  this  was  refused, 
and  the  summons  was  endorsed  by  the  judge;  "No  order,  the 
defendant  refusing  to  give  the  information."  Upon  this  evidence 
the  court  held  that  the  instrument  was  properly  received  r^r-ip-i 
*on  proof  of  his  handwriting.^  After  inquiry  at  the  several 
places  of  residence  of  the  obligor  and  obligee,  where  no  intel- 
ligence could  be  procured  as  to  the  witness,  whom  nobody  knew, 
secondary  evidence  M'as  held  to  be  admissible.^  And  it  was  held 
that  it  was  unnecessary  in  such  a  case  to  advertise  for  the  witness 
in  the  public  newspapers,"^  inquiry  having  been  made  at  the  only 
places  where  it  was  likely  that  the  witness  would  be  met  with  or 
heard  of.     Where  the  attesting  witness  had  left  his  office  of  busi- 

■=  Wallace  v.  Delanccij,  7  T.  R.  206. 

<^  Burt  V.  Walker,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  697.     And  see  Wi/afi  v.  Bate- 
man,  7  Car.  &  P.  (32  E.  C.  L.  R.)  586. 

«  Miller  v.  Miller,  2  Ring.  N.  c.  (29  E.  C.  L.  R.)  76. 

'  Spooner  v.  Papie,  4  C.  B.  (56  E.  C.  L.  R.)  328. 

e  Cunliffe  v.  Sefton,  2  East  183.  ^  2  East  183. 


516  PRIVATE     DOCUMENTS. 

ness  in  London  twelve  mouths  before,  but  no  inquiry  had  been 
made  at  the  house  at  Sydenham,  where  he  had  resided  with  his 
family,  the  evidence  was  held  to  be  insufficient;'  but  on  proof 
being  given  that  a  commission  of  bankruptcy  had  been  sued  out 
against  the  witness  a  year  before,  to  which  he  had  not  appeared. 
Lord  Ellenborough  said  that  he  would  presume  that  he  was  out  of 
the  kingdom,  and  that  if  he  had  been  at  Sydenham  he  would  have 
surrendered  to  save  himself  from  a  capital  felony.''  Where  inquiry 
had  been  made  after  the  witness  at  the  Admiralty,  and  it  appeared 
from  the  last  report  that  he  was  serving  on  board  some  ship,  but  it 
did  not  appear  what  ship,  it  was  held  to  be  sufficient.'  So  it  was 
r-^r-,  Yi  where  inquiry  had  been  made  at  the  last  place  of  residence  of 
*the  witness,  and  the  answer  from  his  father  was,  that  he  had 
absconded  to  avoid  his  creditors,  and  was  not  to  be  found."*  In  an- 
other case  the  testimony  of  a  subscribing  witness  was  dispensed  with 
on  evidence  given  that  the  witness  had  expressed  his  intention  to 
leave  the  country,  stating  ^hat  he  had  reason  for  doing  so,  in  order 
to  avoid  a  criminal  charge,  and  that  his  relations  had  not  seen  him 
after  his  expression  of  such  intention. "*  And  where  an  agreement  of 
letting  was  attested  by  the  landlord's  steward,  who  had  been  appre- 
hended for  felony  and  had  absconded,  and  could  not  be  found  after 

'  Wardle  v.  Fermor,  2  Camp.  282'.  And  Lord  Ellenborough  in  that  case  ob- 
served that  the  proof  of  search  ought  to  be  watched  very  narrowly.  Where  it 
was  proved  that  an  attesting  witness  to  an  agreement  had  been  inquired  after 
by  a  person  who  knew  him,  but  who  had  not  seen  him  for  eighteen  months  at 
coffee-houses  and  other  places  where  he  thought  he  might  hear  of  him,  at  the 
request  of  the  plaintiff's  attorney,  and  without  success,  it  was  held  that  proof 
of  the  handwriting  was  admissible  without  proof  that  inquiry  had  been  made 
of  tlifc  parties  to  the  suit  who  had  executed  the  agreement :  Evans  v.  Curtis,  2 
C.  &  P.  (12  E.G.  L.  R.)  296. 

"  2  Camp.  282  -,  supra. 

'  Parker  v.  Hoskins,  2  Taunt.  223. 

™  Crash;/  v.  Percy,  1  Taunt.  365.  Whei'e  the  father  of  the  witness  proved  his 
having  enlisted  in  a  regiment,  which,  upon  inquiry  at  the  War-office,  he  was 
told  had  sailed  for  India ;  this  was  held  sufficient  to  let  in  proof  of  his  hand- 
writing :  Wi/att  V.  Bateman,  7  Car.  &  P.  (32  E.  C,  L.  II.)  586.  So  where  a  week 
before  the  trial,  the  parents  of  an  attesting  witness  being  asked  where  he  was, 
stated  that  he  was  in  America:  Austin  v.  Bumsei/,  2  C.  &  K.  (61  E.  C.  L.  R.) 
736.  An  inquiry  of  tlie  servant  where  it  was  said  the  witness  might  be  heard 
of,  was  lield  sufficient  to  let  in  evidence  of  the  witness's  handwriting,  and  it  was 
not  necessary  to  show  that  he  was  kept  out  of  the  way  by  collusion  :  William  v, 
Worrall,  8  C.  &  P.  (34  E.  C.  L.  II.)  380.  Semble,  where  grounds  are  shown  for 
suspecting  that  he  is  purposely  kept  out  of  the  way,  proof  of  stricter  search  is 
requisite,  sed  queer c. 

°  Kaij  V.  Brookman,  3  C.  &  P.  (14  E.  C.  L.  K.)  555. 


ATTESTING  WITNESS  —  EXCUSE  FOR  ABSENCE.   517 

search  at  his  house,  and  at  another  house  which  he  was  in  the  habit 
of  frequenting,  evidence  of  his  handwriting  was  admitted."  A  fort- 
night before  the  trial  inquiry  was  made  in  vain  from  the  clerk  and 
agent  of  the  attesting  witness,  and  five  or  six  days  before  the  trial, 
inquiry  was  made  from  his  wife  and  servant  at  his  house,  who  could 
give  no  information  ;  a  bailiff  from  whom  he  had  escaped,  stated 
that  he  had  searched  for  him  without  effect :  and  this  was  held  to  be 
sufficient.^  If  an  attesting  witness  had  set  out  to  leave  the  kingdom, 
his  absence  is  sufficiently  accounted  for,  although  in  fact  the  vessel 
may  have  been  unexpectedly  *beaten  back  into  an  English 
port  by  contrary  winds,  at  the  time  of  trial. "^  L         -I 

It  seems  that  the  temporary  illness  of  the  attesting  witness  to  an 
instrument  would  not  be  a  sufficient  ground  for  admitting  secondary 
evidence.' 

Where  the  plaintiff,  in  order  to  prove  his  possession  of  a  house, 
proposed  to  prove  receipts  for  taxes  given  by  the  tax-gatherer,  who 
had  attended  under  a  subpoena  to  give  evidence,  but  had  been  seized 
with  an  apoplectic  fit,  and  taken  home  dangerously  ill  before  the  trial 
came  on,  and  it  was  proved  that  he  was  in  extremis,  the  secondary 
evidence  was  rejected.^ 

The  party  may  also  prove  that  the  name  of  a  person  as  attesting 
witness  was  introduced  as  such  without  the  knowledge  or  assent  of 
the  parties,  for  in  that  case  he  is  not  an  attesting  witness;'  or  that 
the  name  was  merely  fictitious."  But  it  is  no  excuse  to  show  that 
the  witness  had  denied  his  attestation  without  calling  him.'' 

Where  there  is  more  than  one  attesting  witness,  and  the  absence 

"  Earl  of  Falmouth  v.  Roberts,  9  M.  &  W.  469. 

P  Morgan  v.  Morgan,  9  Bing.  (23  E.  C.  L.  R.)  359. 

1  Ward  V.  Wells,  1  Taunt.  461.  And  see  Varicas  v.  French,  2  Car.  &  K.  (61 
E.  C.  L.  R.)  lOOS. 

^  A  trial  at  the  Assizes  may  be  put  off  on  an  affidavit  stating  the  illness  of 
such  a  witness. 

*  By  Lord  Ellenborough,  Harrison  v.  Blades,  3  Camp.  C.  457.  Mansfield,  C. 
J.,  in  Jones  v.  Brewer,  4  Taunt.  46,  says,  ''  perhaps  in  some  instances  of  sick- 
ness" the  handwriting  of  a  subscribing  witness  may  be  proved.  See  Doe  v. 
Evans,  3  C.  &  P.  (14  E.  C.  L.  R.)  221. 

*  4  Taunt.  220 ;  M'Craw  v.  Gentry,  3  Camp.  332 ;  Cussons  v.  Skinner,  11  M.  & 
W.  161  ;  ante,  p.  503,  note  (r). 

"  Fasset  v.  Brown,  Peake's  C.  23. 

==  Jones  V.  Brewer,  4  Taunt.  46  ;  see  Talbot  v.  Hodson,  7  Taunt.  '(2  E.  C.  L.  R.) 
25]  ;  Fitzgerald  v.  Elsee,  2  Camp.  635  ;  Lemon  v.  Dean,  2  Camp.  636,  n.;  Grellier 
V.  Neale,  Peake's  C.  146  ;  Le?/  v.  Ballard,  3  Esp.  C.  173  ;  Boxer  v.  Rabeth, 
Gow.  175 :  contra,  Phipps  v.  Parker,  1  Camp.  412. 


518  PRIVATE     DOCUMENTS. 

of  all  but  one  is  accounted  for,  the  case  seems  to  be  the  same  as  if 
tbe  latter  had  been  the  only  attesting  witness,  and  he  must  be  called 
to  prove  the  execution,  and  no  other  evidence  can  supply  the  place  of 
his  testimony/ 

*Where  there  have  been  sufficient  attesting  witnesses, 
"-  -^  whose  absence  is  satisfactorily  accounted  for,  the  proper 
proof  is  by  giving  evidence  of  the  handwriting  of  the  attesting  wit- 
nesses; and  it  has  been  usual  in  such  cases  to  give  evidence  also  of 
the  handwriting  of  the  obligor.^     This,  however,  is  not  necessary.*  ^ 

y  Admitted  in  Cunliffe  v.  Sefton,  2  East  183. 
"■  Adam  v.  Kerr,  1  B.  &  P.  360 ;  2  East  183,  supra ;  1  Str.  34. 
»  Kay  V.  Brookman,  3  C.  &  P.  (14  E.  C.  L.  R.)  .555 ;  Nelson  v.  Whitfall,  1  B. 
&  Aid.  19 ;  Page  v.  Mann,  M.  &  M.  (22  E.  C.  L.  R.)  79. 

'  To  warrant  proof  of  the  handwriting  of  subscribing^  witnesses,  or  either  of 
them,  as  a  substitute  for  their  production,  it  must  be  proved  that  they  are  all 
dead  or  beyond  the  jurisdiction  of  the  Court:  Jackson  v.  Gager,  5  Cow.  383  ; 
Jackson  v.  Cady,  9  Id.  140  ;  Lush  v.  Druse,  4  Wend.  313  ;  Jackson  v.  Chamber- 
lain, 8  Wend.  620;  Jackson  v.  Waldron,  13  Wend.  178;  Kelly  v.  Dunlap,Z 
Penna.  Rep.  136;  Clark  v.  Boyd,  2  Ohio  59;  Jones  v.  Cooprigder,  1  Blackf. 
47  ;  Zerhy  v.  Wilson,  3  Ohio  46  ;  Stump  v.  Hughes,  5  Ilayw.  93  ;  Lynch  v. 
Postlethwaite,  1  Mart.  209  ;  Irving  v.  h'ving,  2  Hayw.  27  ;  Johnson  v.  Knight,  1 
Murph.  293.  Proof  that  one  of  two  subscribing  witnesses  to  a  deed,  removed 
from  the  State  thirty  years  before  the  trial,  and  that  the  other  has  not  been 
heard  from  for  thirty-seven  years,  is  accounting  sufficiently  for  the  absence  of 
such  witnesses,  and  on  proof  of  the  handwriting  of  one  of  the  witnesses  and  of 
the  grantor  the  deed  was  read  in  evidence  :  Jackson  v.  Chamberlain,  8  Wend. 
620.  When  witnesses  to  ancient  writings  are  dead,  and  such  a  period  has 
elapsed  since  the  execution  that  no  person  can  be  presumed  to  be  living,  who 
can  testify  to  the  handwriting  of  the  parties  or  witnesses,  evidence  by  a  person 
verifying  the  signatures  of  the  parties  and  witnesses  is  admissible,  although 
his  knowledge  of  such  genuineness  is  derived  solely  from  an  inspection  of  other 
ancient  writings,  having  the  same  signatures,  which  have  been  treated  and  pre- 
served as  muniments  of  title  to  estates  :  Jackson  v.  Brooks,  8  Wend.  426.  When 
the  deposition  of  a  subscribing  witness  proved  the  execution  of  a  bond  by  a 
man  named  Graham,  but  did  not  identify  the  present  defendant,  who  was  of  the 
«ame  name  as  the  obligor,  the  court  permitted  his  handwriting  to  be  proved  to 
identify  him  :   Mushron  v.  Graham,  1  Hayw.  361.  G. 

Where  the  testimony  of  neither  of  the  subscribing  Avitnesses  to  a  deed  can  be 
obtained,  proof  of  the  handwriting  of  the  grantor  is  admissible,  without  first 
proving  the  handwriting  of  the  witnesses  :  Woodman  v.  Segar,  25  Me.  90.  Where 
tlic  subscribing  witness  to  a  deed  was  an  illiterate  person  and  signed  by  his 
mark,  and  both  he  and  the  grantor  were  dead,  it  was  held  that  as  the  mark 
could  not  be  identified,  the  deed  could  be  read  on  proof  of  the  handwriting  of 
the  grantor:  Carrier  v.  HamjAon,  11  Ired.  307;  Morgan  v.  Corfeniiis,4  McLean 
'W).  Proof  of  the  handwriting  of  tlio  grantor  to  a  deed  furnishes  more  satisfac- 
tory evidence  of  its  execution  than  would  proof  of  the  handwriting  of  the  sub- 


ABSENCE     OF    ATTESTING    WITNESS.  519 

The  signature  of  an  attesting  witness,  when  proved,  is  evidence  of 
•every  thing  upon  the  face  of  the  instrument,  for  it  is  to  be  presumed 
that  the  witness  would  not  have  subscribed  his  name  in  attestation  of 
that  which  did  not  take  phice ;  and  where  there  are  several  attesting 
witnesses,  all  of  whom  are  accounted  for,  proof  of  the  handwriting  of 
any  one  is  sufficient  without  proving  that  of  the  rest.''  It  has  been 
held  indeed  in  some  instances,  that  where  the  testimony  of  the  attest- 
ing witnesses  cannot  be  had,  owing  to  their  death,  absence,  interest, 

M  B.  &  P.  3G0,  supra ;  Gougli  v.  Cecil,  1  Sel.  N.  P.  563 ;  Cunliffe  v.  Sefton, 
2  East  183  ;  Prince  v.  Blackhmm,  Ibid.  250.  In  Hill  v.  Unett,  3  Madd.  370,  it 
was  said  that  if  the  witness  be  alive,  proof  must  be  jjiven  of  the  handwriting  of 
the  oblif^or.  And  that  in  such  case,  a  parol  acknowledgment  would  not  l)e  suf- 
ficient to  dispense  with  evidence  of  the  handwriting.     See  note  (f). 

scribing  witness:  Neivson  v.  Luster,  13  111.  175;  see  Gelott  v.  Goodsjjeed,  8  Cush. 
411.  In  the  absence  of  the  subscribing  witness  from  the  jurisdiction,  the  exe- 
cution of  a  promissory  note  by  the  maker's  mark  may  be  shown  by  other 
evidence  :  Ballenger  v.  Davis,  29  Iowa  512.  If  a  witness  derives  his  knowledge 
of  the  handwriting  of  a  person  from  seeing  him  write  or  from  seeing  his  signa- 
ture on  papers  recognized  by  him  as  genuine,  or  from  an  acquaintance  with  his 
signatures,  which  have  been  adopted  into  ordinary  business  transactions,  he 
may  give  his  opinion :  Burnham  v.  Ai/er,  36  N.  H.  182 ;  Southern  Express  Co. 
V.  Thornton,  41  Minn.  216;  Rogers  v.  Bitter,  12  Wall.  317.  As  to  comparison 
of  handwriting,  see  Martin  v.  Maguire,  7  Gray  177;  Bishop  v.  State,  30  Ala. 
34 ;  Chandler  v.  Le  Barron,  45  INIe.  534 ;  Hoyt  v.  Stuart,  3  Bosw.  447 ;  Williams 
V.  Drexel,  14  Md.  566  ;  Jumperts  v.  People,  21  111.  375  ;  Power  v.  Frirk,  2  Grant 
306;  Clark  V.  Wyatt,  15  Ind.  271;  Travis  v.  Brown,  1  Wvight  9;  Dubois  v. 
Baker,  30  Barb.  556  ;  Calkins  v.  State,  14  Ohio  (N.  S.),  222;  Dubois  v.  Baker, 
30  N.  Y.  355  ;  Northern  Bank  v.  Buford,  1  Duvall  335 ;  Comm.  v.  Williams, 
105  Mass.  62 ;  Putnam  v.  Wadley,  40  111.  346  ;  Haycock  v.  Greap,  7  P.  F.  Smith 
438;  Miller  V.  Johnson,  27  Md.  6;  Harley  v.  Gaudy,  28  Tex.  211;  Kernin  v. 
Hill,  37  111.  209;  Vinton  v.  Peck,  14  Mich.  287  ;  Shanks  v.  Putsch,  28  Md.  19; 
Taylor  Will  case,  10  Abb.  Pr.  N.  S.  301.  Upon  a  question  of  handwriting,  other 
papers,  not  pertinent  to  the  cause,  are  not  admissible  for  the  purpose  of  com- 
parison :  Randolph  v.  Loughlin,  48  N.  Y.  456 ;  Medway  v.  United  States,  6  Ct. 
of  CI.  421.  As  to  what  papers  may  be  used  as  standards  of  comparison,  see 
Bragg  v.  Cohcell,  19  Ohio  St.  407  ;  Clark  v.  Rhodes,  2  Heisk.  206  ;  Clayton  v. 
Siebert,  3  Brewst.  176;  State  v.  Ward,  39  Vt.  225.  As  to  the  testimony  of 
experts  in  handwriting,  see  State  v.  Shinborn,  46  N.  II.  497  ;  State  v.  Ward,  39 
Vt.  225;  Vinton  v.  Peck,  14  Miph.  287  ;  Marcy  v.  Barnes,  82  Mass.  161  ;  Tyler 
v.  Todd,  36  Conn.  218  ;  Taylor  Will  case,  10  Abb.  Pr.  N.  S.  301,  As  to  what  is 
proper  evidence  of  handwriting,  see  Magie  v.  Osborn,  1  Rob.  689 ;  Mapes  v. 
Zeal's  Heirs,  27  Tex.  345 ;  Fash  v.  Blake,  38  III.  363 ;  Bruce  v.  Crews,  39  Ga. 
544  ;  U.  S.  V.  Champagne  cases,  1  Benedict  241  ;  Brown  v.  Lincoln,  47  N.  II. 
468.  A  witness  cannot  be  compelled  to  answer  whether  a  signature  shown  to 
him  is  his,  unless  he  is  permitted  to  examine  the  paper  to  which  it  is  appended : 
Ins.  Co.  V.  Throop,  22  Mich.  146  ;  but  see  Kirksey  v.  Kirksey,  41  Ala.  626. 


619  PRIVATE    DOCUMENTS. 

or  any  other  disqualification  accruing  subsequently  to  the  attestation, 
the  signature  of  the  party,  as  well  as  the  witness,*'  must  be  proved ; 
and,  in  many  instances,  an  admission  by  the  obligor^  of  the  debt,  or 
P^roQ-i  of  the  execution  of  the  deed,  *has  been  given  in  evidence. 
It  seems,  however,  to  be  now  perfectly  settled,  for  the  rea- 
son already  given,  that  evidence  of  the  signature  of  one  of  the  attest- 
ing witnesses  alone  is  sufficient  ;*  as  in  the  case  of  Ada7n  v.  Kerr,^ 
where  it  was  proved  that  one  witness  was  dead,  and  that  the  other 
was  in  Jamaica,  and  proof  of  the  handwriting  of  the  deceased  wit- 
ness was  held  to  be  sufficient,  without  proof  of  the  handwriting  of 
the  other  witness,  or  of  the  obligor.  Some  doubt,  however,  has 
existed  upon  the  question,  whether  in  such  cases  proof  of  the  hand- 
writing of  the  witness  was  sufficient,  he  being  dead,  without  any 
further  proof  of  the  identity  of  the  parties,  except  that  of  similarity 
of  name  and  description.  Lord  Tenterden  acted  on  the  opinion,  that 
no  further  evidence  was  necessary.^     But  in  the  subsequent  case  of 

"  Wallis  V.  Delancey,  7  T.  R.  266,  n. ;   Coghlan  v.  Williamson,  Doug.  93. 

*  Doug.  93  ;  2  East  183.  Where  it  was  proved  that  the  attesting  witness  had 
gone  abroad  two  years  ago,  and  it  was  not  known  what  had  become  of  him 
since,  and  the  defendant  had  been  heard  to  say  he  had  sixteen  years  to  come  of 
the  term  granted  by  the  lease,  it  was  held  that  proof  of  the  subscribing  wit- 
ness's handwriting  was  sufficient,  though  the  party  executing  the  deed  was  a 
marksman  :  Doe  d.  Wheeldon  v.  Paul,  3  C.  &  P.  (44  E.  C.  L.  R.)  613.  Where 
the  attesting  witness  cannot  be  produced,  proof  of  his  handwriting  is  sufficient 
evidence  of  execution  by  the  obligor,  although  only  a  marksman  :  Mitchell  v. 
Johnson,  M.  &  M.  (22  E.  C.  L.  11.)  176;  and  where  the  subscribing  witness  to 
the  deed  of  proprietors  constituting  a  company  was  beyond  seas,  it  was  held 
that  proof  of  his  handwriting  was  sufficient,  without  further  proof  of  the 
handwriting  or  identity  of  the  parties :  Kai/  v.  Brookman,  M.  &  M.  (22  E.  C. 
L.  R.)  286  ;  and  3  C.  &  P.  (14  E.  C.  L.  R.)'555. 

•  Kai/  V.  Brookman,  3  Car.  &  P.  (14  E.  C.  L.  R.)  555;  Page  v.  Mann,  M.  & 
M.  (22  E.  C.  L.  R.)  79  ;  Adarn  v.  Kerr,  1  B.  &  P.  360 ;  Prince  v.  Blackburn,  2 
East  250 ;  Milward  v.  Temple,  1  Camp.  375  ;  Gough  v.  Cecil,  1  Selw.  N.  P.  563. 
It  is,  however,  frequently  desirable  to  give  evidence  of  the  handwriting  of  the 
obligor,  for  the  purpose  of  proving  his  identity,  some  evidence  of  which  seems 
to  be  generally  necessary :  see  Parkins  v.  Haivkshaw,  2  Stark.  C.  (3  E.  C.  L.  R.) 
239,  supra;  Nelsonv.  Whittall,  1  R.  &  Aid.  19;  Middletonv.  Sandford,  4  Camp. 
34  ;  I'age  v.  Mann,  M.  &  M.  (22  E.  C.  L.  R.)  79. 

'  1  B,  &  P.  360.  But  see  Hill  v.  Unett,  3  Madd.  370,  where  the  distinction  is 
taken  between  the  case  where  a  witness  is  dead  and  that  where  he  is  still  living; 
in  the  latter  case  it  was  held  that  proof  of  the  handwriting  of  the  obligor  was 
necessary. 

i^Page  v.  Mann,  M.  &  M.  (22  E.  C.  L.  R.)  79,  coram  Lord  Tenterden,  C.  J, 
JCotwithhtanding  the  doubt  expresscul  by  Hayley,  J.,  in  Nelson  v.  Whittall,  1  B. 
&  Aid.  21,  referring  to  the  opinion  of  Lord  Kenyon,  in  Wallis  v.  Delancey,  7 


ABSENCE     OF    ATTESTING     WITNESS.  520 

WJiiteloch  V.  Mu?.grove^  some  evidence  of  identity  was  held  to  be 
necessary.  From  *the  more  recent  cases  however  it  would  ^^_ro^-\ 
appear  that  the  ruling  of  Lord  Tenterden  was  right,'  and  L  '^  J 
that  unless  there  be  some  circumstances  to  create  ambiguity,"*  no  such 
proof  of  identity  is  incumbent  on  the  party  adducing  the  instrument, 
but  it  is  incumbent  on  the  other  party  to  rebut  the  jirinid  facie  case. 

Where  one  of  the  attesting  witnesses,  after  diligent  inquiry  made, 
could  not  be  found,  and  the  other  had  become  interested  since  the 
attestation,  it  was  held,  that  evidence  of  the  handwriting  of  the 
latter  witness  was  sufficient  proof.'  So,  where  the  witness,  since  the 
attestation,  had  been  convicted  of  forgery.™  Where  one  of  two  wit- 
nesses was  dead,  and  the  other  denied  his  signature.  Lord  Holt  ad- 
mitted evidence  of  the  handwriting  of  the  former."  By  the  20  Geo. 
III.,  c.  58,  s.  38,  as  to  deeds  executed  in  the  East  Indies,  and 
attested  by  witnesses  resident  there,  it  is  sufficient  to  prove  by  one 
witness  the  handwriting  of  the  parties  and  of  the  witnesses,  and  that 
the  latter  are  resident  in  India.  These  provisions  seem  to  have  been 
superseded  by  the  rules  of  evidence  already  stated. 

If  the  deed  or  other  instrument,  when  produced,  appear"  to  be 
thirty  years  old,  no  further  proof  is  required ;  since  after  that  time 
it  is  to  be  presumed  that  the  attesting  witnesses  are  all   dead.^' ' 

T.  R.  266,  n.,  that  the  handwriting  of  the  obligor  of  a  bond  in  such  case  ought 
to  be  proved.  See  also  Doe  d.  Wheeldon  v.  Paul,  3  C.  &  P.  (14  E.  C.  L.  R.) 
613  ;  Kmj  V.  Brookman,  M.  &  M.  (22  E.  C.  L.  R.)  286  ;  3  C.  &  P.  (14  E.  C.  L. 
R.)  555  ;  Mitchell  v.  Johnson,  M.  &  M.  (22  E.  C.  L.  R.)  176. 

*"  1  Cr.  &  M.  511.  That  was  the  case  of  an  action  on  a  promissory  note  made 
by  a  marksman. 

'  Sewell  V.  Evans,  Roden  v.  Ryde,  4  Q.  B.  (45  E.  C.  L.  R.)  626  ;  Greenshields 
V.  Crawford,  9  M.  &  W.  314 ;  Humber  v.  Roberts,  7  C.  B.  (62  E.  C.  L.  R.)  861  ; 
Simpson  v.  Dismore,  9  M.  &  W.  47. 

^  Jones  V.  Jones,  9  M,  &W.  75 ;  Barker  v.  Stead,  3  C.  B.  (54  E.  C.  L.  R.)  946. 
In  these  cases  the  ambiguity  arose  from  there  being  other  persons  of  the  same 
name. 

'  Cunliffe  v.  Sefton,  2  East  183.  In  this  case  there  was  also  proof  of  the  ac- 
knowledgment of  the  debt.  See  also  1  Str.  34  ;  1  P.  Wms.  289  ;  Swire  v.  Bell, 
5  T.  R.  372. 

■"  Jones  V.  Mason,  Str.  833.     But  he  would  not  be  competent. 

"  Blurton  v.  Toon,  Skin.  639. 

»  Anderson  v.  Watson,  6  Bing.  N.  C.  (37  E.  C.  L.  R.)  300 ;  Potez  v.  Glossop,  2 
Ex.  191. 

P  B.  N.  P.  255  ;  Bac.  Abr.,  Ev.  F.  ;  Doe  dem.  Spilsbury  v.  Burdett,  4  Ad.  &  E. 
(31  E.  C.  L.  R.)  1  ;  Doe  dem.  Oldham  v.  Wolley,  8  B.  &  C.  (15  E.  C.  L.  R.)  22. 

^  A  deed  of  conveyance  thirty  years  old  unaccompanied  by  any  suspicious  cir- 
cumstances, requires  no  proof,  but  is  good  evidence  of  itself.     This  rule  of  law  is 


522  PRIVATE    DOCUMENTS. 

r*rw90i    -^"t^  '^  seems  to  be   clearly  established,  *that  this   is   not  a 
mere  jjrimd  facie  presumption  that  the  witnesses  are  dead, 

So  in  the  case  of  a  will  thirty  years  old,  reckoning  from  the  time  of  execution. 
See  Will  ;  Miller  v.  Miller,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  76.  The  rule  applies 
generally  to  deeds  concerning  lands,  bonds,  and  other  specialties  :  Governor  of 
Chelsea  Waterworks  v.  Cowper,  1  Esp.  C.  275  ;  entries  in  steward's  books : 
Wynne  v.  TijrwUtt,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  376  ;  letters  and  other  written 
documents.  Ibid. ;  Doe\.  Beynon,  12  Ad.  &  E.  (40  E.  C.  L.  R.)  431.  For  the  rule 
is  founded  on  the  antiquity  of  the  instrument,  and  the  great  difficulty,  nay  the 
impossibility,  of  proving  the  handwriting  after  such  a  lapse  of  time.  See  R.  v. 
Ryton,  5  T.  R.  259 ;  Fry  v.  Wood,  Sel.  N.  P.  564  ;  Dean  and  Chapter  of  Ely  v. 
Stewart,  2  Atk.  44;  Manhy  v.  Curtis,  1  Price  132;  Bertie  v.  Beaumont,  2  Price 
308.  Where  a  letter,  dated  in  1748,  was  found  in  the  possession  of  the  repre- 
sentative of  the  defendant's  attorney,  it  was  held  to  be  prima  facie  evidence  to 
prove  that  the  letter  had  been  written  to  him,  although  it  was  without  address, 
the  envelope  having  been  lost:  Fenwich  v.  Reed,  6  Mad.  8.  It  was  held,  in  the 
same  case,  that  a  letter  found  among  his  papers,  and  appearing  from  its  contents 
to  have  been  written  by  the  attorney's  London  agent,  was  admissible  in  evidence  ; 
Ibid.  In  Beer  v.  Ward,  on  the  trial  of  an  issue  as  to  the  legitimacy  of  a  parti- 
cular person,  a  very  old  letter,  purporting  to  bear  the  signature  of  the  head  of 
the  family,  and  brought  from  among  the  title-deeds  kept  at  the  family-seat,  was 
admitted  without  proof  of  the  handwriting,  by  Dallas,  C.  J.,  Mich.  1821,  and  by 
Lord  Tenterden,  1823.  In  favor  of  an  ancient  certificate,  recognized  by  the  cer- 
tifying parish,  it  will  be  presumed  that  the  churchwarden  who  executed  the  cer- 
tificate was  duly  sworn  :  R.  v.  Whitchurch,  Inhah.,  7  B.  &  C.  (14  E.  C.  L.  R.) 
573 ;  Marsh  v.  Colnett,  2  Esp.  C.  665 ;  and  see  R.  v.  Farringdon,  2  T.  R.  466. 
In  the  case  of  The  King  v.  Netherthong,  2  M.  &  S.  337,  it  was  held,  that  a  certifi- 
cate by  the  appellant  parish  (sixty  years  old)  might  be  read  in  evidence  when 
produced  by  a  rated  inhabitant  of  the  respondent  parish,  without  any  account 
given  of  its  custody ;  and  the  court  intimated  that  he  might,  if  necessary,  be 
examined  by  the  appellants  to  the  custody.  A  bond,  thirty  yeai's  old,  found 
amongst  the  papers  of  a  corporation,  who  were  the  obligees,  is  admissible  with- 
out proof  of  the  handwriting  of  the  obligor  or  attesting  witness  :  The  Governor 
and  Company  of  the  Chelsea  Waterworks  v.  Coioper,  1  Esp.  C.  275  :  Rees  v. 
Mansell,  Selw.  N.  P.  564.  On  a  question  whether  certain  lands,  which  had 
been  approved  from  a  waste,  were  subject  to  a  right  of  common,  several  coun- 
terparts of  old  leases  kept  among  the  muniments  of  the  lord  of  the  manor,  by 
which  the  land  appeared  to  have  been  demised  by  the  lord  free  from  any  such 
charge,  were  allowed  to  be  evidence  for  the  plaiutiS"  claiming  under  the  lord  of 
the  manor,  though  possession  under  the  leases  was  not  shown  :  Clarksou  v.  Wood- 
house,  5  T.  R.  412,  n. 

80  well  established  that  if  the  subscribing  witnesses  were  known  to  be  alive  and 
within  the  jurisdiction  of  the  court,  it  would  be  unnecessary  to  call  or  produce 
them:  Henthom  v.  Doe,  1  Blackf.  162;  Hanes  v.  Peck''s  Lessee,  Mart.  &  Yerg. 
228;  see  also  Roberts  v.  Stanton,  2  Munf.  129;  Neivlett  v.  Cock,  7  Wend.  371. 
But  it  has  been  held  in  Massachusetts  that  if  the  subscribing  witness  to  a  deed 
be  living,  he  should  be  called,  although  the  deed  is  more  than  thirty  years  old  ; 
Tolvian  v.  Emerson,  4  Pick.  160.  G. 

In  the  case  of  Jackson  v.  Blanshaiv,  3  Johns.  292,  Kent,  C.  J.,  says,  "  It  is 


PROOF     OF — IF    THIRTY    YEARS     OLD.  523 

which  is  liable   to  be  rebutted  *by  proof  th.at  the   attesting    r^coo-i 
witnesses  are  still  alive,  so  as  to   render  it  necessary  to  call 
them  ;  but  that  it  is  a  peremptory  rule  of  law,  founded  upon  general 
convenience,  that  such  proof,  after  the  lapse  of  thirty  years,  shall  be 
unnecessary.''     Where,  however,  the  deed  labors  under  any  suspicion, 

1  Doe  V.  WoUeij,  8  B.  &  C.  (15  E.  C.  L.  R.)  22  ■  Lord  Tcnterden,  C.  J.,  in  that 
case  observed,  that  the  allowing;  the  presumption  of  the  death  of  the  attestinj^ 
witness  to  be  rebutted,  would  be  but  a  trap  for  a  nonsuit.  And  see  B.  N.  P. 
255;  Marsh  v.  Colnett,  2  Esp.  C.  665.  In  Rees  v.  Mansell,  Selw.  N.  P.  564, 
Baron  Perrott  is  stated  to  have  ruled  to  the  contrary,  on  the  ground  that  the 
lapse  of  time  afforded  mere  presumptive  evidence  of  the  death  of  witnesses. 
But  another  case  was  cited  to  Mr.  B.  Perrott  upon  that  occasion,  in  which  Mr. 
J.  Yates,  for  the  sake  of  the  practice,  would  not  allow  the  witness  to  prove  an 
old  deed,  althouf^h  he  attended  for  the  purpose.  And  see  Doe  v.  Burdeit,  4  Ad. 
&  E.  (31  E.  C.  L.  R.)  1. 

accompanying  possession  alone  which  establishes  the  presumption  of  authen- 
ticity in  an  ancient  deed :  see  also  9  Johns.  169,  Doe  v.  Phelps ;  10  Johns.  475, 
Doe  V.  Campbell.  This  is  also  the  doctrine  of  the  courts  of  Maryland :  Huddy 
V.  Harryman,  3  Har.  &  McHen.  581  ;  Joce  v.  Harris,  1  Ibid.  196  ;  Carroll  v.  Nor- 
wood,  1  Har.  &  J.  174;  in  each  of  which  cases,  possession  under  the  deed  was 
held  to  be  essential  to  its  admissibility.  So  in  South  Carolina,  a  deed  thirty 
years  old  cannot  be  given  in  evidence  without  the  regular  pi-oof  unless  it  first 
be  shown  that  possession  has  accompanied  it:  Thompson  v.  Bullock,  1  Bay  364  ; 
Middleton  v.  Mass,  2  N.  &  McC.  55.  The  same  would  seem  to  be  the  law  of 
Virginia :  Roberts  v.  Stanton,  2  Munf.  129  ;  Lee  v.  Tajyscolt,  2  Wash.  276.  Of 
Pennsylvania :  Shaller  et  al.  v.  Brand,  6  Binn.  435.  And  also  of  Connecticut : 
Mallory  et  al.  v.  Aspinwall  et  al.,  2  Day  280 ;  see  Thomases  Lessee  v.  Horlocker, 

I  Dall.  14;   Tolman  v.  Emerson,  4  Pick.  160.  M. 

A  deed  thirty  years  old,  where  possession  has  gone  with  the  deed,  proves  it- 
self: Green  v.  Chelsea,  24  Pick.  71 ;  Parris  v.  Eubanks,  1  Speers  183 ;  McClesky 
V.  Leadbeater,  1  Kelly  551  ;  Doe  v.  Eslava,  11  Ala.  1028  ;  Willson  v.  Belts,  4 
Denio  201  ;  Winston  v.  Gwathmey,  8  B.  Mon.  19  ;  Troup  v.  Hurlbut,  10  Barb. 
S.  Ct.  354;  Hedger  v.  Ward,  15  B.  Mon.  106  ;  Reaume  v.  Chambers,  22  Mo.  36; 
Clark  V.  Wood,  34  N.  H.  447  ;  White  v.  Hutchincjs,  40  Ala.  253.  Proof  that  a 
deed  of  land  is  more  than  thirty  years  old,  without  other  circumstances,  is  no 
evidence  of  its  authenticity,  especially  where  no  possession  has  been  taken  under 
it,  and  the  land  has  bt>en  held  adversely,  although  the  deed  is  shown  to  have 
been  in  the  custody  in  which  it  would  have  been  likely  to  be  if  genuine  :  Will- 
son  v.  Belts,  4  Denio  201  ;  Horner  v.    Cilley,  14  N.  H.  85  ;  Ridgely  v.  Johnson, 

II  Barb.  S.  Ct.  527.  If  an  instrument  offered  in  evidence  as  an  ancient  deed,  be 
proved  to  be  thirty  years  old,  it  is  not  necessary  to  show  that  it  came  from  the 
proper  custody,  and  that  possession  has  been  held  under  it :  Brown  v.  Wood,  6 
Rich.  Eq.  (S.  C.)  155.  Continual  possession  of  an  ancient  deed,  when  execution  is 
not  proved,  is  not  the  sole  sufficient  test  of  its  authenticity  :  Caruthers  v.  El- 
dridge,  12  Gratt.  670.  A  treasurer's  tax  receipts  prove  themselves  after  the 
lapse  of  thirty  years  when  produced  from  the  proper  custody  :  McReynolds  v. 
Longerberger,  7  P.  F.  Smith  13. 


523  PRIVATE     DOCUMENTS. 

arising  from  any  rasure  or  interlineation,  it  is  a  matter  of  prudence 
and  discretion  to  prove  it  in  the  usual  way  by  means  of  an  attesting 
witness,  if  any  be  still  living,  or  by  proof  of  the  handwriting  of  an 
attesting  witness,  where  they  are  all  dead,''  in  order  to  rebut  the  un- 
favorable presumption  arising  from  an  inspection  of  the  deed  ;  and 
this  ought  more  especially  to  be  done  if  the  deed  import  fraud ;  as, 
where  a  man  conveys  a  reversion  to  one,  and  afterwards  conveys  it 
to  another,  and  the  second  purchaser  proves  his  title ;  because  in 
such  case  the  presumption  arising  from  the  antiquity  of  the  deed  is 
destroyed  by  an  opposite  presumption  ;  for  no  man  shall  be  supposed 
guilty  of  so  manifest  a  fraud. ^ 

The  same  rule  applies  to  other  old  writings,  such  as  receipts'  and 
r^^OAi  letters."  Where  an  indenture  of  apprenticeship  had  been 
executed  thirty  years  ago,  and  the  parish  in  which  the  pau- 
per had  resided  had  treated  him  as  a  parishioner  for  twelve  years,  it 
was  presumed  that  the  indenture  had  been  lost,  and  that  it  had  been 
properly  stamped,  although  it  was  proved  by  the  deputy  registrar 
and  comptroller  of  the  apprentice  duties,  that  it  did  not  appear  to 
have  been  stamped  from  1773  to  1805. '^ 

It  has  already  been  observed,  that  in  order  to  give  authenticity  to 
an  ancient  instrument  which  does  not  admit  of  proof  by  the  ordinary 
tests,  it  is  essential  to  show  that  it  has  been  brought  from  the  natural 
and  legitimate  repository '/  as  in  the  case  of  terriers,  ancient  grants, 
an  inspeximus,  an  endowment  by  a  bishop.  Where  an  old  deed  is 
given  in  evidence,  without  proof  of  its  execution,  some  account 
ought  to  be  given  of  the  place  where  it  has  been  kept ;''  or  evidence 
should  be  given  so  as  to  afford  a  presumption  that  the  party  has  been 

'  Chettle  V.  Poutid,  B.  N.  P.  255 ;  Bac.  Abr.,  Ev.  F.  But  see  Trimmlestown  v. 
Kemmis,  9  CI.  &  F.  763. 

"  B.  N.  P.  255  ;  Bac.  Abr.,  Ev.  F. 

'  Bertie  v.  Beaumont,  2  Pri.  308  ;  Sullen  v.  Michel,  2  Pri.  399 ;  4  Dow.  297  : 
Wynne  v.  Tyrwhitt,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  376  ;  Dean  of  Ely  v.  Stewart, 
Atk.  44 ;  Manly  v.  Curtis,  1  Pri.  225. 

"  In  Beer  v.  Ward,  cor.  Dallas,  C.  J.,  Sitt.  after  Mich.  1821  ;  and  cor.  Lord 
Tenterdcn,  C.  J.,  K.  R.  Sitt.  after  Trin.  1823,  on  an  issue  as  to  the  legitimacy 
of  A.  B.,  an  old  letter,  purporting  to  be  signed  by  the  head  of  the  family,  and 
brought  from  among  the  title-deeds  at  the  family  seat,  was  admitted  to  be 
read. 

'  It.  V.  Lony  Buclchy,  7  East,  45.  The  binding  being  in  the  year  1774  or 
1775. 

y  Supra,  p.  291. 

'■  B.  N.  P.  255,  ante,  p.  291. 


ANCIENT  DEED — CUSTODY.  524 

in  possession  under  the  deetl/  But  it  is  sufficient  that  a  document 
be  produced  from  a  place  where  it  was  likely  to  be  found,  although 
it  be  not  the  most  proper  place  of  custody.''  As  to  such  writings, 
some  evidence  should  be  given  to  afford  a  reasonable  presumption* 
that  they  were  honestly  and  fairly  obtained,  and  preserved  for  use, 
*and  are  free  from  suspicion  of  dishonesty.  In  ordinary  [-*f;9f;-| 
cases,  however,  where  the  instrument  is  produced  by  one 
who  has  an  interest  in  it,  it  is  not  necessary  to  show  where  the  in- 
strument has  been  kept ;  it  is  sufficient  for  overseers  to  produce  a 
parish  certificate  thirty  years  old,  without  showing  whence  it  came.** 
So  it  was  held  to  be  sufficient  for  a  rated  inhabitant  of  a  respondent 

»  Bac.  Abr.,  Ev.  F.  ;  B.  N.  P.  254.  In  Jewison  v.  Di/son,  9  M.  &  W.  540,  an 
order  by  the  Chancellor  and  Council  of  the  Duchy  of  Lancaster,  made  in  1670 
to  the  coroners  of  the  honors  of  Pontefract  (within  the  duchy)  as  to  the  returns 
of  inquests,  was  held  admissible  without  evidence,  that  it  had  ever  been  acted  on. 
And  see  Doe  v.  Puhnan,  3  Q.  B.  (43  E.  C.  L.  R.)  622. 

"  Cronghton  v.  Blake,  12  M.  &  W.  205 ;  Bp.  of  Meath  v.  Winchester,  3  Bing. 
N.  C.  (32  E.  C.  L.  R.)  183  ;  Slater  v.  Hodgson,  *9  Q.  B.  (58  E.  C.  L.  R.)  727. 

<=  Vin.  Abr.,  tit.  Evidence,  A.  6 ;  7  East  291 ;  4  B.  &  Aid.  (6  E.  C.  L.  R.)  376  ; 
B.  N.  P.  255;  Forbes  v.  Wale,  1  Bl.  532.  Letters  addressed  to  the  party's 
mother,  with  whom  she  lived,  and  at  whose  death  the  keys  and  papers  were  de- 
livered to  her,  were  held  to  be  properly  in  her  custody  :  Doe  v,  Beynun,  12  Ad. 
&  E.  (40  E.  C.  L.  R.)  431.  And  where  in  ejectment  by  a  mortgagee  a  prior 
deed  of  settlement  was  produced  from  the  papers  of  the  mortgagor,  lately  de- 
ceased, who  was  tenant  for  life  under  it,  this  was  considered  the  proper  custody  : 
Doe  V.  Samples,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  151. 

^  R.  V.  Ryton,  5  T.  R.  259 ;  see  also  Dean  and  Chapter  of  Ely  v.  Stewart,  2 
Atk.  44 ;  Fry  v.  Wood,  2  Sel.  N.  P.  564.  A  lessee  occupied  lands  under  a  tenant 
for  lives,  and  paid  the  rent  reserved  by  the  lease  to  one  Williams.  The  day 
after  the  last  life  dropped,  he  obtained  the  lease  from  certain  persons  whose 
connection  with  it  did  not  appear,  and  delivered  it  up  to  Williams,  taking  a 
fresh  demise  of  the  lands  from  him.  This  lease  being  produced  by  the  lessor 
was  held  to  come  from  proper  custody :  Rees  v.  Walters,  3  M.  &  W.  527.  A 
will  fifty  years  old  was  produced  by  the  plaintiff's  attorney,  who  received  it 
from  B.,  and  the  witness  stated  that  when  the  same  cause  was  before  an  arbi- 
trator it  was  produced  by  B.,  and  the  defendant's  attorney  in  his  presence  there- 
upon consented  to  its  being  admitted  in  evidence.  Patteson,  J.,  held  this  to 
be  slight  but  admissible  evidence  of  the  proper  custody :  Doe  dem.  Boivdler  v. 
Owen,  5  C.  P.  (34  E.  C.  L.  R.)  751.  So  it  is  sufficient,  if  a  lease  creating  a  term 
to  attend  comes  from  the  solicitor  of  the  fiimily  of  the  party  :  Doe  v.  Phillips, 
8  Q.  B.  (55  E.  C.  L.  R.)  158  ;  or  if  a  lease  comes  from  the  land  agent  of  the 
lessors,  although  the  agent  be  not  in  court :  Doe  v.  Keeling,  11  Q.  B.  (63  E.  C. 
L.  R.)  884.  These  cases  seem  to  overrule  in  this  respect  what  was  said  in  Evans 
v.  Rees,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  151  ;  that  it  is  not  enough  for  the  party, 
his  counsel  or  steward  to  produce  the  document  in  court,  but  that  some  evidence 
of  the  custody  should  also  be  given. 


528  PRIVATE     DOCUMENTS. 

chartulary  of  that  abbey,  and  preserved  amongst  the  muniments  of 
the  Marquis  of  Bath,  the  owner  of  some  estates  which  formerly 
belonged  to  the  abbey,  although  not  of  the  farm  in  question,  was  suffi- 
ciently connected  with  the  abbey  to  be  admissible  in  evidence  as  a 
genuine  document  which  belonged  to  the  abbey/  It  was  also  held 
that  two  documents  contained  in  the  book  were  evidence ;  the  one 
being  in  the  form  of  an  appropriation,  dated  1269,  made  by  the 
Bishop  of  Salisbury  to  the  abbey  of  Glastonbury,  of  the  profits  of 
a  rectory,  reserving  to  the  bishop  a  power  of  ordaining  a  vicarage  in 
the  same  church,  of  a  specified  yearly  value,  and  the  other  contain- 
ing a  list  of  different  articles  of  endowment  of  the  same  vicarage.' 

^    *It    was    likewise  held,    that  the  accounts  of  rents  of   the 

r*5'^91 

L  "^  -•  abbey,  also  found  among  the  same  muniments,  and  contain- 
ing the  allowances  and  acquittances  of  the  abbey,  were  admissible. 
Copies  from  an  ancient  schedule,  produced  from  the  muniments  of  a 
corporation,  and  delivered  to  the  toll  collectors,  by  which  they  col- 
lected the  tolls,  are  admissible  for  the  corporation,  although  it  would 
have  been  otherwise  if  not  shown  to  have  been  delivered  to  the  col- 
lectors by  the  corporation,  however  accurately  corresponding." 

The  first  skin  of  an  indenture  relating  to  lands  in  question  in  the 
suit,  which  appeared  to  have  been  severed  from  the  rest  by  a  sharp 
instrument,  which  had  cut  away  the  seals  and  names  of  the  parties 
who  appeared  by  the  endorsement  to  have  executed  it,  was  formerly 
in  the  custody  of  the  plaintiff's  steward  until  litigation  commenced 
between  him  and  the  plaintiff,  when  it  was  handed  over  to  the  suc- 
ceeding steward,  and  was  produced  by  him  on  the  trial  of  an  issue  in 

^  It  was  observed  by  Gibbs,  C.  B.,  2  Price  410,  that  such  a  book  as  this  pur- 
ports to  be,  usually  contains  a  description  of  all  the  estates  of  the  abbey,  and  all 
the  transactions  relating  to  them.  When  the  abbey  was  dissolved,  those  estates 
went  to  the  Crown,  and  the  Crown  afterwards  granted  them  to  different  persons. 
The  book,  when  the  abbey  was  dissolved,  would  go  to  the  officers  of  the  Crown, 
and  when  the  Crown  portioned  out  and  made  over  the  possessions  of  the  abbey 
to  other  persons,  the  books  could  go  to  one  only  of  those  grantees,  and  the  only 
possible  way  of  connecting  it  with  the  abbey  is  by  showing  a  connection  between 
the  possessor  and  the  Crown,  and  by  raising  a  probability  that  the  Crown  may 
have  handed  over  the  book  to  its  present  possessor. 

'  Wood,  B.,  dissented  from  the  other  judges  of  tlic  court  upon  this  point:  he 
admitted  that  the  book  had  been  sufficiently  connected  with  the  abbey  to  make 
it  evidence  as  a  cofiy  of  the  endowment,  supposing  such  evidence  to  be  relevant; 
but  he  was  of  opinion  that  it  was  not  relevant  evidence  upon  that  point,  since 
the  endowment  was  not  disputed  ;  and  that  for  any  other  purpose  these  entries 
were  res  inter  alios,  and  mere  memoranda  of  an  executory  project.  See  his 
observations  at  length,  2  Price  425. 

"  Jhelt  V.  Jiealcs,  M.  &  M.  (22  E.  C.  L.  11.)  416. 


PROOF WHERE     NO     ATTESTING     WITNESS.  529 

which  the  defendant  derived  title  from  the  former  steward.  This  was 
held  to  be  the  proper  custody,  and  the  document  was  admitted  in  evi- 
dence against  the  plaintiff." 

Where  no  name  of  any  attesting  witness  is  subscribed,  or  where 
there  are  names  subscribed  which  are  proved  to  be  fictitious,^  or  of 
real  persons  who  either  did  not  actually  witness  the  execution  of 
the  deed  or  other  instrument,^  or  who  were  in  point  of  law  in- 
competent to  *attest  it,"*  the  execution  may  be  proved  by  the 
testimony  of  any  witness  who  was  present  when  the  deed  was  •-  -' 
executed ;''  or  it  will  be  suflScient  to  prove  the  handwriting  of  the 
obligor,  from  which  the  sealing  and  delivery  may  be  presumed,*  or  his 
acknowledgment  of  the  instrument. 

Where  the  writing  has  been  lost**  or  destroyed,  or  so  situated  that 
its  production  cannot  be  enforced,®  the  *fact  must  be  proved,  r:): co-it 
If  positive  proof  of  the  destruction  cannot  be  had,  it  must 

^  Lord  TrimJestoicn  v.  Kemmis,  9  CI.  &  Fin.  775  ;  and  see  Price  v.  Woodhouse, 
3  Ex.  616. 

y  Fasset  v.  Brown,  Peake's  C.  23. 

'  GrelUer  v.  Neale,  Peake's  C.  146 ;  WCraiv  v.  Gentry,  3  Camp.  232 ;  Cussons 
V.  Skinner,  ante,  p.  503,  note  [t).  In  PJiipps  v.  Parker,  1  Camp.  412,  where  the 
party  whose  name  appeared  as  the  attesting  witness  negatived  the  attestation 
by  him,  Lord  Ellenborough  held,  that  the  deed  could  not  be  proved  by  evidence 
of  the  handwriting  of  the  supposed  obligor,  or  of  an  acknowledgment  by  him  ; 
but  this  case  is  overruled  :  Fitzgerald  v.  Elsee,  2  Camp.  365,  cor.  Lawrence,  J. ; 
Lemon  v.  Dean,  Ibid.  636,  cor.  Le  Blanc,  J.  And  where  the  attesting  witness 
to  a  bond  declared  that  he  did  not  see  it  executed  by  the  obligor  ;  it  was  held 
that  it  Avas  the  same  as  if  there  had  appeared  to  be  no  attesting  witness,  and 
that  the  execution  was  sufficiently  proved  by  showing  the  handwriting  of  the 
obligor :  Boxer  v.  Rabeth,  Gow's  C.  175  ;  and  see  ante,  pp.  572,  573. 

»  Com.  Dig.,  Ev.  B.  3. 

^  Ibid. ;  Fitzgerald  v.  Elsee,  2  Camp.  635 ;  Lemon  v.  Dean,  2  Camp.  636. 

•=  Com.  Dig.,  Evidence,  B.  3  ;  1  Lev.  25  ;  Fassett  v.  Brown,  Peake's  C.  33  ;  2 
T.  R.  41  ;  GrelUer  v.  Male,  Peake's  C.  198  ;  Talbot  v.  Hodson,  7  Taunt.  (2  E. 
C.  L.  R.)  251  ;  the  subscribing  witness  having  denied  that  he  saw  the  execution, 
a  co-obligor  having  been  released,  swore  that  there  was  a  seal  on  the  bond  when 
the  defendant  wrote  his  name  opposite,  but  that  the  defendant  did  not  seal  it, 
nor  put  his  hand  to  the  seal,  nor  deliver  it  in  the  witness's  presence.  The  jury, 
on  the  evidence  being  left  to  them,  found  for  the  plaintiff;  and  the  court  after- 
wards held  that  this  had  been  properly  left  to  the  jury.  If  the  obligor  be  a 
marksman,  it  seems  his  execution  may  be  proved  by  a  person  who  has  seen  him 
so  execute  instruments,  and  can  speak  to  the  mark  :  George  v.  Surrey,  M.  &  M. 
(22  E.  C.  L.  R.)  516.  For  proof  of  handwriting,  see  tit.  Handwriting,  Vol.  II. 

^  A  bill  accepted  abroad  and  negotiated  here  by  the  defendant  on  the  plain- 
tiffs account,  may  be  treated  as  a  lost  bill :  Hunt  v.  Alewyn,  3  C.  &  P.  (14  E.  C. 
L.  R.)  284. 

"  Secondary  evidence  was  held  to  be  inadmissible  where  a  letter  was  filed  in 
32 


531  m  IV  ATE     DOCUMENTS. 

be  shown  that  a  bond  fide  and  diligent  search  has  been  made  for  it 
in  vain  where  it  was  likely  to  be  found." 

the  Court  of  Chancery,  it  being  in  the  power  of  either  party  to  produce  it  on 
application  to  the  court:  Williams  v.  Munnings,  Ry.  &  M.  (21  E.  C.  L.  R.)  18. 
And  if  it  be  in  the  hands  of  one  who  holds  it  as  security  for  money  owing  to 
hiin,  and  refuses  on  his  subj^cena  to  produce  it,  such  a  condition  of  the  docu- 
ment is  equivalent  for  this  purpose  to  loss  :  Doe  d.  Gilbert  v.  Ross,  7  M.  &  "NV. 
102. 

•■  Goodier  v.  Lake,  1  Atk.  446  ;  Lord  Peterborough  v.  Mordaunt,  1  Mod.  94. 
Where  thirty-six  years  had  elapsed  since  indentures  were  executed,  which  had 
been  long  smcefuncti  officio,  and  it  was  shown  that  every  person  had  been  ap- 
plied to  and  called,  in  whose  possession  they  might  reasonably  be  expected  to  be 
found,  secondary  evidence  was  let  in  :  R.  v.  East  Farleigh,  6  D.  &  R.  (16  E.  C. 
L.  R.)  146  As  to  the  necessity  for  search  where  there  is  no  proper  place  of 
deposit,  see  Doe  v.   Grazebrool;  4  Q.  B.  (45  E.  C.  L.  R.)  406. 

^  If  the  non-pi'oduction  of  a  written  instrument  is  satisfactorily  accounted  for, 
evidence  of  its  existence  and  contents  is  admissible  :  U.  S.  v.  Regburn,  6  Pet.  252  : 
Minor  V.  Tillotson,  7  Ibid.  99 ;  Denton  v.  Hill,  4  Ilayw.  73  ;  Jackson  v.  Cullum, 

2  Black.  228  ;  Blackburn  v.  Blackburn,  8  Ilamm.  81  ;  Armstrong  v.   Timmons, 

3  Harrlng.  342  ;  Murray  v.  Buchanan,  7  Black.  549  ;  Mulliken  v.  Bogce,  1  Gill. 
60;  Granger  v.  Warrington,  3  Gilra.  299;  Creed  v.  White,  11  Humph.  549 ; 
Wisicall  V.  Knevals,  18  Ala.  65.  The  loss  or  destruction  of  a  paper  must  be 
strictly  proved,  before  other  evidence  of  its  contents  can  be  received  ;  and  if  a 
writing  be  offered  as  a  copy,  it  must  be  strictly  proved  as  such  before  it  can  be 
given  in  evidence :  Willis  v.  McDole,  2  South.  501  ;  Boynton  v.  Rees,  8  Pick. 
329 ;  Dawson  v.  Graves,  4  Call  127  ;  U.  S.  v.  Porter,  3  Day  283  ;  Can/man  v. 
Congregation,  6  Binn.  59 ;  Doe  v.  McCaleb,  2  How.  (Miss.)  756  ;  Bouldin  v.  Massie, 
7  Wheat.  122;  Redman  v.  Green,  3  Ired.  Ch.  54;  D.  S.  v.  Boyd,  5  How.  29; 
Marshall  v.  Hany,  9  Gill.  251  ;  Poe  v.  Dorrah,  20  Ala.  288.  Secondary  evidence 
of  the  contents  of  a  written  instrument  is  admissible  when  it  has  been  destroyed 
voluntarily  through  mistake  or  by  accident:  Riggs  v.  I'ayZoe,  9  Wheat.  483. 
So,  when  it  is  in  the  hands  of  a  third  person,  out  of  the  jurisdiction  of  the 
court:  Ralph  v.  Brown,  3  W.  &  S.  395;  Waller  v.  Cralle,  8  B.  Monr.  11: 
Threadgill  v.  White,  \1  Ired.  591;  Shepard  \.  Giddings,  22  Conn.  282.  Pre- 
sumptive evidence  of  loss  is  sufficient:  Taunton  Bank  v.  Richardson,  5  Pick. 
436  ;  Central  Turnpike  v.  Valentine,  10  Pick.  142  ;  Bouldin  v.  Massie,  7  Wheat. 
122;  Hathaway  v.  Spooner,  9  Pick.  23;  Flinn  v.  McGonigle,  9  W.  &  S.  75  ; 
Sturdecant  v.  Gains,  5  Ala.  435  ;  Turner  v.  Moore,  1  Brev.  236.  The  loss  or 
destruction  of  an  instrument  is  a  fact  to  be  decided  l)y  the  court  befoi'e  its  con- 
tents can  be  proved,  and  is  not  afterwards  to  be  submitted  to  the  jury:  Witter 
V.  Latham,  12  Conn.  392;  Flinn  v.  McGonigle,  9  W.  &  S.  75 ;  Woodworth  v. 
Barker,  1  Hill  172;  Wood  v.  Gassett,  \\  N.  H.  442  ;  Vaughan  v.  Biggers,  6 
Ga.  188.  A  party  to  a  suit  may  be  a  competent  witness  to  prove  the  loss  of  a 
deed  or  record,  for  the  purpose  of  letting  in  secondary  evidence,  but  not  to  prove 
the  contents  thereof:  Adams  v.  Leland,  7  Pick.  62;  Patterson  v.  Winn,  5  Pet. 
233;  Dun  V.  Brown,  4  Cow.  483;  Jackson  \.  Belts,  6  Id.  377;  Shroioders  v. 
Harper,  1  Ilarring.  444  ;  Harris  v.  Doe,  4  Blackf.  369  ;    Woodworth  v.  Barker, 


SEARCH — IN    CASE     OF     LOSS.  531 

The  degree  of  diligence  to  be  used   in  searcLing  for  a   deed    must 
depend  on  the   importance  of  the  deed   and   the   particular  circum- 

1  Hill  172  ;  Woods  V.  Gassett,  II  N.  II.  442;  Stafford  v.  Stafford,  Saxton  525  ; 
Mai/nor  v.  Lewis,  2  Ga.  205;  Vedderv.  Wilkins,o  Denio  64;  Porter  v.  Ferguson, 
4  Fla.  102  ;  Wade  v.  Wade,  12  Ills.  89 ;  Wells  v.  Martm,  1  Ohio  380.  The 
proof  necessary  to  establish  the  loss  of  a  writing,  so  as  to  let  in  secondary  evi- 
dence of  its  contents,  must  depend  upon  the  nature  of  the  transaction  to  which 
it  relates,  its  apparent  value  and  other  circumstances.  If  suspicion  hangs  over 
the  instrument,  or  tliat  it  is  designedly  withheld,  a  rigid  inquiry  should  be 
made  into  the  reasons  of  its  non-production  ;  but  if  there  is  no  such  suspicion, 
all  that  ought  to  be  required  is  reasonable  diligence  to  obtain  the  original,  in 
respect  to  which  the  courts  extend  great  liberality  :  Juzan  v.  Tonhnin,  9  Ala. 
662;  Kelseij  v.  Ilanmer,  18  Conn.  311;  Waller  v.  School  District,  22  Id. 
326.  The  rule  which  excludes  secondary  evidence  in  a  contest  with  primary 
does  not  mean  that  everything  is  secondary  which  is  not  of  the  highest 
order,  but  only  that  which  discloses  the  existence  of  other  evidence  from 
the  non-production  of  Avhich  it  may  be  supposed  that  if  produced  it 
would  work  against  the  party  offering  it:  Shoenbergir  v.  Hackman,  1  Wright 
87.  In  order  to  admit  secondary  evidence  it  is  not  necessary  that  the 
loss  or  destruction  of  the  document  should  be  proved  beyond  all  possi- 
bility of  mistake  :  all  that  is  required  is  a  moral  certainty  :  U.  S.  v.  Sutter, 
21  How.  (U.  S.)  170.  That  a  paper  was  last  seen  in  the  hands  of  one  out 
of  the  State,  will  admit  secondary  evidence  :  Gordon  v.  Searing,  8  Cal.  49.  To 
admit  secondary  evidence  the  destruction  of  the  instrument  must  have  been 
without  the  agency  or  consent  of  the  party  who  offers  it:  Bagley  v.  McMickle, 
9  Cal.  430;  Tohin  v.  Shaw,  45  Me.  331  ;  Joannes  v.  Bennett,  5  Allen  169.  A 
copy  of  a  telegram  is  not  the  best  evidence,  and  therefore  the  original  must  be 
produced  or  its  absence  accounted  for :  Mattison  v.  Noyes,  25  111.  273 ;  Comm.  v. 
Jeffries,  7  Allen  548.  The  evidence  of  the  person  who  was  the  proper  custodian 
of  the  paper  as  to  its  loss  must  be  adduced :  Anderson  v.  Maherry,  2  Ileisk.  653. 
A  copy  of  a  survey  is  not  admissible  until  proved  by  some  one  who  has  com- 
pared it  with  the  original:  McGinnis  v.  Saioyer,  13  P.  F.  Smith  259;  Coxe  v. 
England,  15  Ibid.  212.  As  to  how  a  copy  ought  to  be  compared  with  the 
original:  Krise  v.  Neason,  16  P.  F.  Smith  253.  Press  copies  of  letters  are  ad- 
missible: Cameron  v.  Peck,  37  Conn.  555.  See  Marsh  v.  Hand,  35  Md.  123.  It 
is  not  necessary  to  produce  the  press  copy  of  a  lost  letter,  but  other  secondary 
evidence  may  be  given  :  Goodrich  v.  Weston,  102  Mass.  362.  Notice  to  a  party 
or  counsel  representing  the  government  to  produce  papers  on  file  in  any  of  the 
departments,  does  not  authorize  the  party  giving  the  notice  to  use  other  copies 
than  those  properly  certified  by  the  officer  in  whose  charge  they  are :  Barney  v. 
Schneider,  9  Wall.  248.  Where  an  attested  copy  of  a  deed  from  the  registry 
is  introduced  as  evidence,  bearing  a  scroll  and  the  word  "  seal"  written  upon  it 
in  a  place  where  the  seal  is  usually  placed,  it  Avill  be  presumed  that  the  original 
was  properly  sealed:  Deininger  v.  McConnel,  41  111.  228.  Where  there  are  de- 
grees in  secondary  evidence  the  best  should  be  produced.  A  copy  of  an  instru- 
ment is  to  be  preferred  to  verbal  testimony  of  its  contents :  Williams  v.  Waters, 
36  Ga.  454.  A  notary's  book  of  protests  is  the  best  evidence  of  entries,  and  must 
be  produced  or  shown  to  be  lost:   Genet  v.  Laicyer,  61  Barb.  211.     A  synoptical 


531  PRIVATE     DOCUMENTS. 

stances  of  eacli  case.^  It  is  not  absolutely  necessary  that  the  search 
for  the  original  document  should  be  made  for  the  purpose  of,  and 
shortly  before  the  cause;  where  it  had  been  made  recently  after  the 
death  of  the  party  in  whose  possession  it  had  been,  although  three 
years  before  the  action,  it  was  held  to  be  sufficient  to  let  in  the 
secondary  evidence.'' 

Inquiry  was  made  after  an  indenture  of  apprenticeship  at  the  house 
of  the  deceased  master  ten  years  after  his  death,  in  which  house  his 
widow  and  son  still  resided,  and  his  goods  and  effects  remained,  and 
the  son  said  that  he  could  not  find  it,  and  some  parol  evidence 
was  given  to  show  that  a  deed  of  apprenticeship  existed ;  the  court 
held  that  the  proof  of  binding  was  not  sufficient."  Where  there 
were  two  parts  of  an  indenture  of  apprenticeship,  one  of  which 
r*co9-|  "^vas  proved  to  have  been  destroyed,  and  the  *other  had 
been  delivered  to   Miss    Taylor,   of  Bomford,  to   whom  the 

8  Per  Best,  C.  J.,  in  Gully  v.  The  Bishop  of  Exeter,  4  Bing.  (13  E.  C.  L.  R.) 
290 ;   Gathercole  v.  Mlall,  15  M.  &  W.  335 ;  Doe  v.  Leivis,  20  L.  J.,  C.  P.  177. 

"  Fitz  V.  Rabbits,  2  M.  &  Rob.  60. 

i  B.  V.  St.  Helens  in  Abingdon,  B.  S.  C.  292,  735 ;  2  Bott.  481  ;  but  in  this  case 
the  evidence  seems  to  have  been  insufficient  to  prove  a  binding,  independently 
of  the  objection  that  the  proof  of  loss  was  insufficient  for  the  purpose  of  admit- 
ting secondary  evidence  :  and  the  circumstances  of  the  case  rather  negatived  the 
existence  of  a  valid  indenture. 

exhibit  of  the  contents  of  bank  books  is  not  the  best  evidence.  The  books  them- 
selves must  be  produced  or  their  absence  accounted  for :  Ritchie  v.  Kinney,  46 
Mo.  298.  Oral  evidence  of  the  words  written  on  the  tag  of  a  valise  is  admissible 
to  identify  the  tag  without  proving  its  loss :  Comm.  v.  Morrell,  99  Mass.  542. 
The  destruction  of  a  contract  by  a  person  claiming  under  it,  after  he  knows  that 
there  is  to  be  a  difficulty  about  it,  is  strong  presumptive  evidence  that  its  terms 
were  unfavorable  to  his  claim  :  Warren  v.  Crew,  22  Iowa  315  ;  Page  v.  Stephens, 
23  Mich.  357;  Lucas  v.  Brooks,  23  La.  Ann.  117.  If  a  party  has  voluntarily 
destroyed  a  writing,  he  cannot  prove  its  contents  unless  he  repels  the  inference 
of  fraud  in  its  destruction  :  Blake  v.  Fash,  44  111.  302.  See  further  as  to  se- 
condary evidence  of  writings  :  Krise  v.  Neason,  16  P.  F.  Smith  253  ;  Chrysler  v. 
Renvis,  43  N.  Y.  209 ;  Eady  v.  Shivey,  40  Ga.  684 ;  Martin  v.  Williams,  42  Miss. 
210 ;  Huls  V.  Kimball,  52  111.  391  ;  Wells  v.  Jackson  Manuf.  Co.,  48  N.  II.  491 ; 
Coxe  V.  England,  15  P.  F.  Smith  212  ;  Taylor  v.  Peck,  21  Gratt.  11  ;  Yale  v. 
Oliver,  21  La.  Ann.  454;  McGuire  v.  Bank,  42  Ala.  589  ;  Christy  v.  Kavanagh, 
45  Mo.  375 ;  Ins.  Co.  v.  Weide,  9  Wall.  677  ;  Sturgis  v.  Hart,  45  111.  103 ;  Clark 
v.  Hornbeck,  2  Green  430 ;  Roe  v.  Doe,  32  Ga.  39  ;  King  v.  Randlett,  33  Cal.  318  ; 
White  V.  liurney,  27  Tex.  50 ;  Wallace  v.  Wilcox,  Ibid.  GO ;  Patterson  v.  Keystone 
Co.,  30  Cal.  300;  O' Meara  v.  North  American.  Co.,  2  Nev.  112;  Robertson  v. 
Moorer,  25  Tex.  428;  Bally  v.  Trammell,  27  Ibid.  317;  Wells  v.  Miller,  37  111. 
276;  Winona  v.  Ifv^',  11  Minn.  119;  Delong  \.  Delong,  24  Ark.  7;  Thayer  v. 
liarnnj,  12  Minn.  502;  Fir.^t  National  Bank  v.  Priest,  50  111.  321. 


SEARCH — IN    CASE     OF    LOSS.  532 

apprentice  bad  been  assigned,  evidence  was  given  tbat  application  bad 
been  made  to  Miss  Taylor,  Avbo  bad  ceased  to  reside  at  Bomford,  for 
tbe  part  delivered  to  ber,  and  tbat  sbe  bad  said  tbat  she  could  not 
find  it,  and  did  not  know  wbere  it  was,  but  Miss  Taylor,  tbough 
still  living,  was  not  called  as  a  witness ;  tbe  court  beld,  tbat  tbe 
part  so  delivered  bad  not  been  sufficiently  accounted  for;  it  bad 
been  traced  into  tbe  bands  of  INIiss  Taylor,  but  no  furtber  evidence 
bad  been  given  to  sbow  wbat  bad  become  of  it.''  But  wbere  one 
part  only  of  an  indenture  of  apprenticeship  bad  been  executed, 
and  both  tbe  pauper  and  master  were  dead  at  tbe  time  of  tbe  trial, 
and  it  appeared  on  tbe  evidence,  tbat  on  inquiry  made  from  tbe 
pauper  shortly  before  his  death,  be  said  tbat  tbe  indenture  had  been 
given  up  to  him  after  the  expiration  of  tbe  apprenticeship,  and  that 
he  had  burnt  it :  and  inquiry  had  also  been  made  of  the  daughter  of 
tbe  executrix  of  the  master,  who  said  tbat  she  kncAv  nothing  about 
it,  and  no  furtber  search  was  made,  tbe  court  beld  tbe  proof  to  be 
sufficient,  since  here,  if  the  declaration  of  tbe  pauper  was  admissi- 
ble so  as  to  sbow  a  possession  by  him,  it  also  showed  that  furtber 
search  was  unnecessary ;  and  on  this  ground  it  was  distinguished 
from  tbe  case  of  The  King  v.  Castleton,  for  there  the  evidence  showed 
that  a  furtber  search  was  necessary.' 

*Tbe  master  of  an  apprentice,  having   tbe  indentures  in    r*cqq-i 
bis  possession,  failed ;  an  attorney  took  the  management  of 
bis  estate  and  the  custody  of  his  papers,  which   be   inspected  with- 

"  R.  V.  Castleton,  6  T.  R.  236  ;  see  also  Williams  v.  Yotmghushand,  1  Stark. 
C.  (2E.  C.  L.  R.)  139. 

^  R.  V.  Morton,  4  M.  &  S.  48.  The  Court  of  King's  Bench  held  that  in  such  a 
case  it  was  sufficient  for  the  parties  to  show  that  they  had  used  reasonable  dili- 
gence ;  that  these  were  terms  applicable  to  some  known  or  probable  place  or 
person  in  respect  of  which  diligence  may  be  used  ;  that  what  the  pauper  said  was 
admissible,  and  although  it  might  not  amount  to  proof  of  the  fact  that  the  in- 
denture had  been  destroyed  by  him,  it  was  so  far  evidence  as  to  afford  a  reason 
why  further  search  was  not  made  with  him.  That  if  such  an  inquiry  had  been 
made  of  a  merchant  for  some  commercial  purpose,  and  he  had  given  a  similar 
answer  it  would  have  been  sufficient.  It  was  like  a  non-production  on  request 
and  the  party  accounts  for  it ;  and  that  this  case  was  distinguishable  from  that 
of  R.  V.  Castleton,  for  there  the  answer  given  was  a  reason  for  making  further 
search.  Whei-e  a  person  to  whom  letters  had  been  written  which  were  required 
to  be  produced,  said  that  he  had  searched  for  them  in  a  particular  box  in  which 
he  had  put  them,  without  being  able  to  find  them,  but  added  that  he  thought 
they  were  somewhere  in  his  possession,  but  that  he  had  not  searched  in  any 
other  place,  it  was  held  that  enough  had  not  been  done  to  let  in  secondary  evi- 
dence :  Bligh  V.  Wellesley,  2  Car.  &  P.  [12  E.  C.  L.  R.)  400. 


533  PRIVATE     DOCUMENTS. 

out  finding  the  deed;  this  was  hehl  to  be  sufficient  evidence  of  loss, 
though  the  widow  was  still  living,  and  no  incjuirj  had  been  made 
from  her :  such  an  inquiry  would  have  been  useless  after  such  evi- 
dence as  to  the  master's  papers. ""  But  where,  on  an  appeal  against  an 
order  of  removal,  the  appellants,  relying  on  the  settlement  of  a  per- 
son deceased  by  apprenticeship,  called  the  widow  of  the  deceased, 
who  proved  that  her  husband,  in  his  last  illness,  told  her  that  he  had 
received  the  indentures  from  his  master  at  the  end  of  the  apprentice- 
ship, and  had  worn  them  out  in  his  pocket,  it  was  held  that  without 
further  inquiry  evidence  of  the  conversation  was  inadmissible.  And 
the  case  was  distinguished  from  that  of  Ttex  v.  Mo7'to7i,  on  the  ground 
that  in  the  case  inquiry  had  been  made  from  the  master's  executrix." 
In  the  case  of  a  parish  apprentice,  after  reasonable  proof  has 
been  given  of  a  delivery  of  the  indenture  to  the  parish  officers,  proof 
should  be  given  of  a  search  in  the  parish  chest,  which  is  the  proper 
place  of  deposit." 

p^rqi-i        *An  agreement  for  a  lease  had  been  deposited  in  the  hands 

of  the  landlord,  who,  upon   application  to  him  by  the  lessee, 

refused  to  produce  it.     Ten  years  after  this  and  three  after  the  death 

of  the  lessor,   the   tenant,   upon    an   appeal,   swore    that  he    did  not 

•"  R.  V.  Piddlehinton,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  460. 

"  R.  V.  Rawden,  2  A.  &  E.  (29  E.  C.  L.  R.)  156.  The  court  observed,  that  the 
evidence  was  of  a  danj^erous  kind,  and  to  be  received  with  caution. 

"  Where  the  mother  of  a  parish  pauper  stated  that  she  had  received  money 
from  the  officers  of  B.,  to  put  her  son  out  as  an  apprentice  ;  that  she  had  accord- 
ingly put  him  out,  and  delivered  the  indenture  to  the  wife  of  a  mai-ket  gardener, 
who  was  dead,  having  sui-vived  her  husband,  to  be  delivered  to  the  overseers  of 
B.,  and  that  search  had  been  made  in  the  parish  chest  of  B.  for  the  indenture 
without  success;  it  was  held  that  parol  evidence  was  admissible,  the  parish 
chest  being  the  proper  place  of  deposit :  R.  v.  Stourbridge,  8  B.  &  C.  (15  E.  C. 
L.  R.)  96 ;  M-Gaheij  v.  Alston,  2  M.  &  W.  206,  infra,  p.  538.  So  where  search 
has  been  made  in  the  parish  chest  of  the  binding  parish  for  the  indenture, 
which  had  been  proved  to  have  been  delivered  to  N.  Badger,  the  mother  of  the 
apprentice,  to  be  delivered  to  the  overseer,  and  the  husband  being  dead,  his 
executor  was  called  to  negative  the  existence  of  any  such  instrument  among  his 
papers :  Rex  v.  Bromsgrooe,  East.  T.  1828.  Where  the  indenture  was  proved 
to  have  been  delivered  by  a  parish  apprentice  to  his  master,  who  was  still 
living,  it  was  held  that  the  master's  declaration,  on  application  by  the. appren- 
tice at  the  end  of  the  term,  that  he  had  delivered  the  indenture  to  the  parish 
officer,  and  proof  that  a  fruitless  search  had  been  made  among  the  papers  of  the 
parish  for  the  indenture,  were  insufficient  to  let  in  parol  evidence  of  the  contents : 
R.  v.  Deido  Inh.,  7  B.  &  (I.  (14  E.  C.  L.  R.)  620  ;  R.  v.  Castleton,  6  T.  R.  136, 
cited  by  Baylcy,  J.,  as  directly  in  point ;  but  see  7  Q.  B.  (53  E.  C.  L.  R.)  642 ; 
and  see  Williams  v.  Younghuabaud,  1  Stark.  C.  (2  E.  C.  L.  R.)  139. 


SEARCH — IN     CASE     OF     LOSS.  534 

know  in  wliose  possession  the  agreement  was,  and  no  inquiry  had  been 
made  after  it,  and  yet  it  appears  that  parol  evidence  was  held  to  be 
admissible ;''  and  Buller,  J.,  observed,  that  if  it  had  been  in  proof 
that  the  executor  of  the  lessor  had  been  in  possession  of  the  instru- 
ment, it  might  have  varied  the  case.  After  the  expiration  of  the 
lease,  the  lessee,  the  pauper,  was  entitled  to  it  in  strictness,  but  he 
neither  had  it,  nor  knew  whether  it  existed  ;  and  it  was  then  nine 
years  after  its  expiration.''  But  in  general  it  must  be  shown  that 
*inquiry  has  been  made  after  the  deed;"  and,  as  appears  rtnorn 
above,  it  has  been  hehl  that  the  loss  of  it  must  be  proved  by 
the  person  in  whose  hands  it  was  at  the  time  of  the  loss,  or  to  whose 
custody  it  is  traced,^  if  that  person  be  living ;  and  if  he  be  dead, 
application  should  be  made  to  his  representative,  and  search  should 
be  made  amongst  the  documents  of  the  deceased. 

Where   the  witness  applying  to  the  vicar  for  the  register  of  bap- 

P  E.  V.  North  Bedburn,  Cald.  452. 

1  Qu.,  whether,  inasmuch  as  the  document  had  been  proved  to  be  once  in  the 
possession  of  the  lessor,  who  had  refused  to  deliver  it  up,  a  presumption  did  not 
arise  that  it  was  in  the  hands  of  the  representative?  In  fact  no  inquiry  had 
been  made  after  the  deed,  and  there  was  no  proof  that  it  was  not  still  in  existence. 
In  Doe  dem.  Richards  v.  Lewis,  20  L.  J.,  C.  P.  177,  a  deed  conveying  property 
to  P.  and  B.,  as  trustees,  was  delivered  to  an  attorney  by  S..  the  woman  who 
executed  it  clandestinely  before  her  intended  marriage,  with  directions  not  to 
give  it  up  to  any  one  save  AerseZ/and  her  son  together.  lie  afterwards  gave  it  up 
to  »?.,  in  the  presence  of  her  son,  and  there  was  no  evidence  that  the  deed  had 
been  seen  since.  Search  had  been  made  for  it  on  *SVs  premises;  P.  stated  that 
he  had  no  knowledge  of  the  existence  of  the  deed  till  a  short  time  before  the 
trial,  and  had  it  not ;  but  no  search  had  been  made  among  the  papers  of  B., 
who  was  dead,  nor  any  inquiry  of  his  representative.  The  court  held  the  search 
insufficient,  and  Talfourd,  J.,  observed,  a  search  is  never  sufficient  unless  it 
negative  the  possession  of  the  deed  by  the  party  who,  by  law,  should  have  the 
custody  it. 

'  R.  v.  *S'^.  Sepulchre,  2  Bott.  482 ;  Cal.  547. 

^  R.  V.  Castleton,  6  T.  R.  236.  Where  policies  of  insurance  had  been  de- 
livered to  the  assignees  of  a  bankrupt,  one  of  whom  was  since  dead,  proof  of  an 
application  to  the  solicitor  under  the  commission,  who  answered,  that  he  did 
not  know  what  was  become  of  them,  was  held  to  be  insufficient:  Williams  v. 
Younghushand,  1  Stark.  C.  (2  E.  C.  L.  R.)  139.  But  where  an  assignment  of 
turnpike  tolls  had  been  executed  by  way  of  mortgage  to  K.,  in  an  action  by  -ff'.'s 
executor  against  the  trustees  for  arrears  of  interest,  a  search  for  the  security  in 
the  office  of  jP.'s  solicitor  where  his  papers  had  been  deposited,  except  some 
which  had  been  deposited  in  the  office  of  a  Master  in  Chancery  in  a  suit  against 
the  executor,  and  also  in  that  office  without  finding  it,  was  considered  sufficient 
evidence  of  its  loss  to  let  in  secondary  evidence  :  and  it  was  held  that  entries  in 
the  mortgage  book  of  the  trustees  containing  the  names  of  the  creditors,  the 
amount  of  their  securities  and  the  interest  due  upon  them  was  such  evidence : 
Pardoe,  Ex.,  v.  Price,  13  M.  &  W.  267. 


535  PRIVATE    DOCUMENTS. 

tism  is  told  that  there  was  none   prior  to  a  j^articular  date,  the  vicar 
not  being;  called,  his  declaration   is  not  evidence  of  the  loss  of  such 
register  so  as  to  let  in  secondary  evidence.' 
r*rop-i         *With  respect,  however,  to  the  nature  of  the  search  which 

should  be  made  for  a  document,  it  Avould  appear  that  no 
general  rule  exists  ;  the  question  in  every  case  is,  whether  there  has 
been  evidence  enough  to  satisfy  the  court"  that  a  bond  fide  search 
was  made  for  the  instrument  where  it  was  likely  to  be  found ;  and 
that  the  omission  to  produce  it  does  not  arise  from  mere  carelessness, 
neglect,  or  fraud.  In  the  case  in  which  these  remarks  were  made, 
on  an  examination  before  removing  justices,  it  Avas  deposed,  that 
after  an  apprentice's  death  D.  had  possession  of  the  indenture  of 
apprenticeship,  and  had  stated  on  inquiry  that  she  had  given  it  to 
the  master  of  a  workhouse  in  which  she  was  an  inmate,  that  he  Avas 
dead,  and  his  widow  had  stated  that  she  had  searched  his  papers  but 
could  not  find  it,  and  had  given  up  all  parish  papers  to  the  assistant 
overseer ;  and  it  was  further  deposed  that  the  latter  stated  that  he 
had  examined  the  papers  but  did  not  recollect  seeing  the  indenture, 
and  had  handed  them  over  to  another  overseer,  who  said  that  he  had 
searched  them  but  could  not  find  it,  and  that  D.  having  died  since  the 
inquiry  made  of  her,  the  master  and  matron  of  the  workhouse  where 
she  died  said  no  papers  were  found  in  her  possession,  nor  could  the 
indenture  be  found  amongst  the  papers  left  by  the  attorney  who  pre- 
pared it  upon  inquiry  of  his  widow  and  search  by  her ;  secondary 
evidence  was  held  by  the  court  to  have  been  properly  admitted.'^ 

Where  the  purchaser  of  a  weekly  paper,  upon  an  indictment  for 
P^-or-n    a  libel,  swore  that  he  believed  that  the  original    *had  been 

destroyed,  it  was  held  to  be  sufficient  proof  to  let  in  second- 
ary evidence."     Where  a  license  to  trade  with  an  enemy,  granted  by 

'  Walker  v.  Beauchamp,  6  C.  &  P.  (25  E.  C.  L.  R.)  552. 

"  The  question  as  to  the  admissibility  of  the  secondary  evidence  is  for  the 
court,  and  not  for  the  jury  ;  and  in  this  respect  it  resembles  the  question  as  to 
whether  the  custody  from  which  an  ancient  document  is  produced  be  the  proper 
one:  lte(j.  v.  Keinhvorth,  7  Q.  B.  (53  E.  C.  L.  R.)  042;  Bees  v.  Walters,  3  M.  & 
W.  527,  531  :  IJoe  v.  Keeling,  11  Q.  B.  (63  E.  C.  L.  R.)  884.  In  order  to  decide 
this  question  the  court  may  receive  answers  to  inquiries,  without  calling  all  the 
persons  of  whom  those  inquiries  were  made:  [Reg.  v.  Kenilworth,  and  ante,  note 
(Z)  ;)  as  in  the  case  of  inquiries  after  an  attesting  witness,  see  ante,  p.  514,  et  seq. 

»  lieg.  v.  Kenilworth,  7  Q.  B.  (53  E.  C.  L.  R.)  G42. 

"  R.  V.  Johnson,  7  East  65,  infra,  note  (c).  It  may  be  presumed  that  an  use- 
less instruiiiont  has  boon  destroyed  ;  see  the  observations  of  Bailey,  J.,  in  Ji.  v. 
East  Farleigh,  6  1>.  &  R.  (16  E.  C.  L.  R.)  153.  See  also  Kensington  v.  Inglis,  8 
Plant  273,  inj'ra.  In  an  action  for  a  libel  in  a  ncwspaj)er,  called  the  Noncon- 
formist, published  by  the  defendant,  it  was  desired  to  prove  that  a  copy  had 


SEARCH — IN  CASE  OF  LOSS.  537 

a  governor  of  a  colony,  had  been  returned  after  being  used  to  tlie 
secretary  of  the  governor,  who  swore  that  it  was  his  custom  to  put 
aside  such  licenses  amongst  the  waste  papers  in  the  oflice,  as  being  of 
no  further  use  ;  that  he  supposed  that  he  had  disposed  of  the  license 
in  question  in  this  manner ;  and  that  he  had  searched  for  it,  but  did 
not  recollect  whether  he  had  found  it  or  not,  though  he  did  not  think 
that  he  had  found  it;  the  court  were  of  opinion  that  the  evidence 
satisfied  what  the  law  required  in  respect  of  search,  and  established 
with  reasonable  certainty  the  fact  of  the  license  being  lost.  It  was 
not,  the  court  observed,  to  be  expected  that  the  witness  should  be 
able  to  speak  with  more  confident  certainty  to  a  fact  to  which  his 
attention  was  not  particularly  drawn  at  the  time  on  account  of  any 
importance  supposed  to  belong  to  it.^  Where  a  loss  had  been  settled 
upon  a  policy  of  insurance  against  fire,  in  the  year  1813,  and  upon 
a  trial  in  1819,  the  plaintifi",  in  an  action  for  libel,  charging  him  with 
having  made  fraudulent  claims  upon  the  insurance  company  with 
respect  to  such  loss,  called  their  agent,  who  stated  that  the  policy 
was  returned  to  him  after  the  fire,  and  that  he  had  it  in  his  posses- 
sion *then,  and  afterwards  when  the  plaintiflF  made  a  larger  r*;^QQ-i 
insurance  with  the  company ;  that  upon  the  loss  having  been 
settled,  the  old  policy  became  an  useless  paper  :  that  he  did  not  know 
what  had  become  of  it,  but  he  believed  he  had  returned  it  to  the 
plaintiff.  The  clerk  to  the  plaintifi"s  attorney  then  proved  that 
within  a  few  days  of  the  trial  he  went  to  the  plaintiff's  house  to  search 
for  the  policy,  when  the  plaintiff  showed  every  drawer  where  he  usu- 
ally kept  his  papers,  that  he  examined  such  drawers,  and  every  other 
place  wherein  he  thought  it  likely  to  find  such  a  paper,  without  find- 
ing it.  Held,  that  it  was  sufficient  to  entitle  the  plaintiff  to  give 
secondary  evidence  of  the  contents  of  the  policy.^ 

A  check  having  been  drawn  on  account  of  a  parish,  was  delivered 
to  the  paying  clerk  of  the  parish  ;  the  bankers  of  the  parish  on  the 
same  day  paid  a  sum  of  the  same  amount ;  the   course   was  to  return 

been  sent  to  a  public  reading  room  in  the  plaintiff's  parish  to  which  there  were 
many  subscribers.  The  president  of  the  reading  room  stated  that  a  newspaper 
bearing  that  name  was  gratuitously  sent  to  the  room  ;  that  from  th^  glance  he 
had  of  it,  he  judged  that  it  contained  the  libel  complained  of;  that  it  remained 
there  for  a  fortnight,  when  it  was  taken  away  as  he  supposed,  and  not  returned  ; 
that  he  had  searched  the  room  for  it  and  believed  it  was  lost ;  and  this  evidence 
was  considered  sufficient  to  make  secondary  evidence  of  its  contents  admissible  : 
Gathercole  v.  Miall,  15  M.  &  W.  319. 

y  Kensington  v.  Inglis,  8  East  273. 

"  Brewster  v.  Sewell,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  296.  See  also  R.  v.  East  Far- 
leigh,  6  D.  &  R.  (16  E.  C.  L.  R.)  147. 


Oda  PRIVATE     DOCUMENTS. 

the  cancelled  check  to  the  paying  clerk  to  be  deposited  in  an  apart- 
ment of  the  workhouse.  The  paying  clerk  having  gone  out  of  office, 
application  had  been  made  (by  a  witness  called)  to  his  successor  for 
an  inspection  of  the  checks;  he  handed  to  the  witness  several  bun- 
dles wdiich  were  searched  unsuccessfully  for  the  check  in  question, 
and  it  was  held  that  secondary  evidence  was  admissible.'^ 

Where  it  appeared  that  the  magistrate  who  took  the  *in- 
L  J  formations  had  returned  them  to  the  clerk  of  the  peace,  and 
the  clerk  to  the  latter,  stated  that  it  was  the  practice  where  bills  liad 
been  ignored  to  throw  away  the  papers  as  useless,  and  that  after 
searching  the  information  could  not  be  found  ;  it  was  held,  in  an 
action  for  a  malicious  prosecution,  that  this  was  sufficient  to  let  in 
secondary  evidence  of  their  contents,  without  calling  the  clerk  of 
the  peace  to  show  they  were  not  in  his  possession  :  for  if  the  informa- 
tions were  delivered  to  the  deputy,  they  were  delivered  to  him  as  the 
agent  of  the  clerk  of  the  peace,  and  not  for  his  own  purposes  ;  it  was 
therefore  to  be  presumed  that  the  documents  were  not  among  his 
private  papers,  but  rather  among  those  in  the  custody  of  the  clerk  of 
the  peace.''  The  legal  custody  of  a  document  appointing  a  particular 
person  to  an  office,  such  as  overseer,  is  in  that  person  ;  for  he  is  the 
party  most  interested  in  the  instrument,  and  requires  its  production 
as  a  sanction  for  what  he  does  under  its  authority.''  A  presumption 
hence  arises  that  such  an  officer  has  the  custody  of  his  appointment, 
and  consequently  parol  evidence  cannot  be  given  of  such  an  appoint- 
ment without  proof  of  application  to  him.*^ 

"•  McGuhey  v.  Alston,  2  M.  &  W.  206.  Where  the  warrant  to  the  officer  to 
seize  under  aji.fa.  was  not  produced  nor  was  any  notice  given  to  produce  it, 
and  it  appeared  to  have  been  given  to  the  son  of  the  officer,  who  believed  he  had 
either  returned  it  to  his  father,  or  to  the  sheriff's  office,  and  the  officer  stated  that 
it  was  usual  to  deliver  it  to  the  auctioneer,  who  transmitted  it,  with  the  auction 
sheet,  to  the  Excise  Office,  through  the  district  supervisor,  and  proof  was  given 
of  search  made  by  the  auctioneer  among  his  own  papers,  and  at  the  sheriff's 
and  excise  offices,  but  the  supervisor  was  not  called,  nor  was  any  search  amongst 
his  papers  proved ;  it  was  held,  that  sufficient  diligence  was  proved  to  let  in  se- 
condary evidence  of  the  warrant  to  connect  the  officer  with  the  warrant :  Min- 
shull  V.  Lloyd,  2  M.  &  W.  450. 

"  Freeman  v.  ArMl,  2  B.  &  C.  (9  E.  C.  L.  R.)  494. 

"  Per  L*(l  Ellenborough,  i?.  v.  Stoke  Goldiny,  1  B.  &  Aid.  173.  In  replevin 
and  avowry  by  the  defendants,  as  overseers,  for  the  distress  of  poor's-rates,  evi- 
dence that  on  one  of  them  being  applied  to  for  his  appointment  he  said  he  had 
lost  it,  was  held  to  be  sufficient  to  let  in  secondary  evidence,  the  party  not  being 
capable  of  being  called:  Governors  of  Bristol  Poor  v.  Wait,  6  C.  &  P.  (25  E.  C. 
L.  II.)  591. 

*•  1  B.  &  Aid.  173  ;  and  as  to  the  custody  of  a  sheriff's  warrant,  see  1  Stark. 
C.  (2  E.  C.  L.  II.)  413.     Where  a  warrant  to  seize  for  borough  rates  had  been 


SEARCH — IN     CASE     OF    LOSS.  540 

*Wherc  the  appointment  of  overseers  for  the  year  1802  .-^^  .^-| 
could  not  be  found  in  the  parish  chest,  and  search  had  been  L 
made  among  the  papers  of  B.,  deceased,  who  had  acted  as  executor 
of  the  party  who  acted  as  overseer  for  that  year ;  it  was  hehl  to  be 
sufficient  to  let  in  parol  evidence  of  the  contents  of  that  appoint- 
ment, as  being  of  a  single  overseer  for  that  year.'' 

Where  the  production  of  the  instrument  is  on  legal  grounds  im- 
possible, the  effect  is  the  same  in  respect  of  secondary  evidence  as  if 
it  had  been  lost  or  destroyed.  As  where  it  is  in  a  foreign  country, 
fi'om  whence  it  cannot  be  removed.^  So  if  the  instrument  on  grounds 
of  policy  cannot  be  read.^  So  if  a  party  objects  to  the  production 
of  a  deed  by  one  who  has  possession  as  his  trustee.''  ^ 

executed  by  the  high  constable,  who  said  he  had  no  doubt  that  he  had  deposited 
it  in  his  office,  yet  he  could  not  find  it,  and  did  not  know  where  it  was,  but  that 
the  town  clerk  also  had  access  to  his  office  ;  secondary  evidence  of  it  was  ad- 
mitted :  Fernley  v.  Worthington,  1  M.  &  G.  (39  E.  C.  L.  R.)  401.  Where,  on  a 
motion  for  a  new  trial,  a  document  had  been  handed  up  to  the  judges,  and  could 
not  afterwards  be  found  ;  it  was  held  that  no  search  was  necessary  to  be  made 
at  the  judge's  chambers,  as  it  was  to  be  presumed  to  have  been  returned  to  the 
party  producing  it:  Deacon  v.  Fuller,  6  C.  &  P.  (25  E.  C.  L.  R.)  74. 

«  R.  V.  Witherby,  4  M.  &  Ry.  724. 

*■  Alivon  V.  Furnival,  1  C,  M.  &  R.  277.  In  assumpsit  for  money  received, 
being  the  amount  of  a  bill  which  the  defendant  had  obtained,  and  paid  into  his 
bankers  ;  held,  that  the  bill  not  being  produced,  nor  any  account  of  it  given,  the 
banker's  clerk  could  not  be  asked  as  to  a  bill  paid  in  by  the  defendant,  answer- 
ing to  it  in  description,  and  credited  to  him  ;  but  it  afterwards  appearing  that 
the  bill  was  in  Scotland,  out  of  the  jurisdiction,  so  the  plaintiff  could  not  com- 
pel the  production  of  it,  a  new  trial  was  granted  on  payment  of  costs  :  Atkins  v. 
Owens,  4  Nev.  &  M.  (30  E.  C.  L.  R.)  123  ;  and  2  Ad.  &  Ell.  (29  E.  C.  L.  R.)  35. 
But  see  E.  v.  Douglas,  1  Car.  &  K.  (47  E.  C.  L.  R.)  670. 

^  Thus  if  a  document  be  in  the  hands  of  an  attorney,  and  out  of  regard  to  his 
client's  privilege  or  his  own  lien  it  cannot  be  read,  secondary  evidence  is  admissi- 
ble :  Mills  V.  Ocldg,  6  C.  &  P.  (25  E.  C.  L.  R.)  732 ;  Marston  v.  Downes,  1  Ad. 
&  Ell.  (28  E.  C.  L.  R.)  31 ;  Doe  dem.  Gilbert  v.  Ross,  7  M.  &  W.  102 ;  Hibbard 
v.  Knight,  2  Ex.  11  ;  Newton  v.  Chaplyn,  19  L.  J.,  C.  P.  374  ;  Lloyd  v.  Mostyn, 
10  M.  &  W.  478  ;  Higgs  v.  Taylor,  5  Car.  &  K.  (47  E.  C.  L.  R.)  85.  In  Doe  v. 
Owen,  8  C.  &  P.  (34  E.  C.  L.  R.)  110.  Lord  Abinger  expressed  an  opinion  that 
Mills  V.  Oddy,  was  not  law,  but  this  was  erroneous.  In  Doe  v.  Ross  it  was 
pointed  out  that  the  attorney  must  be  served  with  a  subpoena  duces  tectun ;  and 
that  perhaps  it  may  be  necessary  to  show  that  the  client  also  objects  to  the  pro- 
duction of  the  document ;  but  the  objection  of  the  client  in  open  court  is  suffi- 
cient, though  he  has  been  served  with  only  a  subpoena,  and  not  a  subpoena  duces 
tecum:  Newton  v.  Chaplin,  19  L.  J.,  C.  P.  374. 

''  Where  the  defendant  called  a  party,  who  as  trustee  held  a  deed  of  composi- 

^  A  copy  of  a  deed  may  be  read  in  evidence,  upon  the  oath  of  a  party  that  he 


541  PRIVATE     DOCUMENTS. 

*When  sufficient  evidence   has  been  given  of  the  loss  of 
r*5411  . 

^         -J    the  deed  or  other  instrument,  of  which  the  Court  is  to  judge,' 

it  must  be  shown  that  the  instrument  existed  as  a  genuine  instru- 
ment ;''  that  it  was  written  on  stamped'  paper  or  parchment;  and  in 
case  of  apprentice  deeds,  what  sum  was  paid  with  the  apprentice, 
and  that  the  deeds  bore  an  ad  valorem  stamp  ;""  for  the  consciousness 
of  a  defect  of  this  nature  may  have  been  a  motive  for  concealing  or 
destroying  the  instrument."^  But  the  *presumption  seems 
L        "-'    to  be  that  an  instrument  not  found  after  reasonable  search 

tion  between  the  plaintiff  and  other  creditors  and  the  mother  of  the  defendant, 
but  the  defendant  was  no  party  to  it,  and  the  phxintiff  objected  to  its  being  pro- 
duced ;  it  was  held  that  secondary  evidence  might  be  given  of  its  contents  by  a 
party  who  had  made  an  extract  from  it;  {per  Gurney,  B.)  Cocks  v.  Nash,  6  C. 
&  P.  (25  E.  C.  L.  K.)  154. 

*  Harveu  v.  MitcheU,  2  M.  &  Rob.  366  ;  seei?.  v.  Eenilworth,  7  Q.  &  B.  (53  E. 
C.  L.  R.)  642,  supra,  p.  536.  n  [u). 

^  Goodier  v.  Lake,  1  Atk.  446 ;  R.  v.  Sir  T.  Culpepper,  Skinner  673.  But 
where  the  terms  of  a  license  required  that  the  time  of  sailing  should  be  en- 
dorsed thereon,  and  the  license  was  burnt  at  the  custom-house,  a  proper  endorse- 
ment was  presumed :  Butler  v.  Allnut,  1  Stark.  C.  (2  E.  C.  L.  R.)  222.  Where 
the  lessor  read  the  terms  of  a  demise  to  the  tenant,  who  did  not  sign  them,  nor 
were  they  shown  to  him,  parol  evidence  of  those  terms  was  admitted :  Trewhitt 
V.  Lambert,  10  A.  &  E.  (37  E.  C.  L.  R.)  470. 

^  Where  the  plaintiff  had  lost  his  part  of  an  agreement  under  seal,  after  it 
had  been  duly  stamped,  and  the  defendant  upon  notice  produced  his  part  un- 
stamped, it  was  held  that  it  might  be  read  in  evidence  :  Munn  v.  Godbold,  3 
Bing.  (11  E.  C.  L.  R.)  292.  See  further,  Vol.  II.,  tit.  Stamp;  and  see  also 
Garnons  v.  Swift,  1  Taunt.  507. 

™  See  Goodier  v.  Lake,  1  Atk.  446  ;  Burn,  J.,  tit.  Poor. 

"  Where  however,  a  party  in  possession  of  an  original  deed  or  other  instru- 

had  searched  the  clerk's  office  and  all  other  places,  where  he  supposed  the  ori- 
ginal deed  might  probably  be  found  :  Ben  v.  Peete,  2  Rand.  539.  The  book  of  the 
judge  of  the  probate  court  may  be  given  in  evidence,  where  the  original  will  is 
proved  to  be  lost:  Jackson  v.  Lncett,  2  Caines  363.  Where  a  deed  is  proved  to 
be  lost,  and  its  execution  established  by  a  subscribing  Matness,  a  copy,  sworn  to 
have  been  made  out  by  a  clerk,  as  a  true  copy,  is  admissible  to  show  title  in  the 
lessor  of  the  plaintiff  in  ejectment:  Morgan  v.  Marshall,  7  J.  J.  Mar.sh.  316. 
An  ancient  record  of  a  deed  in  a  book  of  records  and  in  the  writing  of  the  town 
clerk,  though  not  signed  or  certified  by  him,  is  admissible  ;  the  loss  of  the 
original  having  been  shown  :  Booge  v.  Parsons,  2  Yt.  456.  Copies  of  deeds,  made 
by  disinterested  persons  of  good  character,  and  under  circumstances  that  create 
no  imputation  of  fraud,  may  be  received  in  evidence  where  the  original  is 
proved  to  be  lost :  Allen  v.  Parish,  3  Ilamm.  107.  On  diligent  search  secondary 
evidence  is  admissible:  Bell  v.  Young,  1  Grant  175;  Grajfw.  Pittsburg  &  Steu- 
henville  UaUroad  Co.,  7  Cas.  489;  Booth  v.  Cook,  20  111.  129;  Kidder  v.  Blais- 
dell,  45  Me.  461 ;  Pha;nix  Lis.  Co.  v.  Taylor,  5  Min.  492. 

'  The  instrument  must  be  proved  to  have  been  duly  executed  with  the  formalities 


LOST,     OR     NOT     PRODUCED — HOAV     PROVED.  542 

made  lias  been  duly  stamped."  Its  execution  must  be  proved  accord- 
ing to  the  nature  of  the  instrument ;''  if  a  deed,  by  means  of  an  at- 
testing witness,  or  by  proof  of  his  handwriting,  if  he  be  dead,  or  that 
of  tlie  obligor,  if  the  deed  be  not  attested,  in  the  manner  already 
stated. "i 


mcnt  withholds  it,  aftor  notiee  to  produce,  it  may  under  the  circumstances  be 
presumed  that  the  instrument  was  properly  stamped  :  Crisp  v.  AnrJerson,  1 
Stark.  C.  (2  E.  C.  L.  R.)  35;  Valler  v.  Ilorsfall,  1  Camp.  C.  501;  Poolej/  v. 
Goodwin,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  94.  But  where  the  plaintiff  relied  on  an 
affreement  upon  the  deposit  of  some  goods  in  the  defendant's  possession  as  a 
security,  Avhich  the  latter  refused  upon  notice  to  produce,  whereupon  a  witness 
produced  a  copy  of  it  which  he  had  kept,  l)ut  on  cross-examination  stated  that 
the  orijrinal  was  not  stamped  when  <2;iven  to  the  defendant,  and  it  appeared  the 
plantiff's  attorney  had  had  an  inspection  of  it  shortly  before  the  trial,  and  he 
was  not  called,  the  court  held  that  the  presumption  of  its  beino;  properly 
stamped,  might  arise  from  its  non-production,  was  rebutted,  and  the  copy  was 
properly  rejected :    Crawther  v.  Solomons,  6  C.  B.  (60  E.  C.  L.  R.)  758. 

'  Hart  V.  Hart,  1  Hare  1  ;  R.  v.  Long  Biickbi/,  7  East  45  ;  Pooley  v.  Goodwin, 
4  Ad.  &  E.  (31  E.  C.  L.  R.)  94;  1  Stark.  C.  (2  E.  C.  L.  R.)  35. 

P  R.  V.  Culpepper,  Skinner  673,  by  Lord  Hardwicke,  C.  J.  ;  Goodier  v.  Lake, 
1  Atk.  446.  Where  a  note  has  been  lost,  a  copy  is  not  evidence  unless  the  note 
be  proved  to  be  genuine.  An  endorsement  on  a  draft  deed  by  one  of  the  de- 
fendants, who  was  a  clerk  in  the  solicitor's  office,  of  the  engrossment  of  a  deed, 
is  not  sufficient  evidence  of  execution  to  let  in  secondary  evidence  :  Doe  v. 
Whitefoot,  8  C.  &  P.  (34  E.  C.  L.  R.)  270. 

•i  But  qucere,  whether  this  is  strictly  necessary,  as  it  is  now  well  settled  that 
there  are  no  degrees  of  secondary  evidence  :  Doe  v.  Ross,  7  M.  &  W.  102  ;  Hall 
V.  Ball,  3  M.  &  G.  (42  E.  C.  L.  R.)  242;  Brown  v.  Woodman,  6  C.  &  P.  (25  E. 
C.  L.  R.)  206  ;  the  omission  to  produce  the  best  evidence  being  merely  matter 
of  observation.     In    Cook  v.    TansweU,  8   Taunt.  (4  E.  C.  L.  R.)  450;  Poole  v. 

required  l»y  law  :  Kimball  v.  Morritl,  4  Greenl.  368  ;  Elmondorjf  v.  Carmichael, 
3  Litt.  472  ;  Shrouders  v.  Harper,  1  Harring.  444  ;  Porter  v.  Wilson,  1  Harris 
641  ;  Stone  v.  Thomas,  2  Jones  209.  After  proof  of  the  loss  or  destruction  of 
a  deed,  its  execution  and  contents  are  to  be  established  by  the  subscribing  wit- 
nesses, if  they  can  be  had  ;  otherwise  by  other  legitimate  testimony,  declara- 
tions of  the  grantor,  &c. :  Griffith  v.  Huston,  7  J.  J.  Mavsh.  385;  Kelsey  v. 
Hanmer,  18  Conn.  311  ;  Anderson  v.  Snow,  8  Ala.  504.  The  due  execution  of 
a  lost  deed,  thirty  years  old  may  be  presumed  :  Bcall  v.  Dearimj,  7  Ala.  124. 
In  the  case  of  a  lost  bond,  the  acknowledgment  of  the  obligor  that  he  executed 
it  is  held  sufficient  proof  without  producing  the  subscribing  witnesses  :  Maynor 
V.  Lewis,  2  Ga.  205.  Where  an  attorney  stated  that  a  letter  was  written  to  him 
by  the  plaintiff,  whica  was  lost  and  the  contents  not  remembered  by  him, 
another  person,  to  whom  the  attorney  showed  the  letter,  is  competent  to  prove 
its  contents,  although  he  has  no  knowledge  of  the  handwriting.  The  identity 
of  the  letter'and  the  proof  of  its  contents  are  questions  for  the  jury  :  Curry  v. 
Robinson,  11  Ala.  266. 


542  PRIVATE     DOCUMENTS. 

But  where  proof  of  the  execution  would  have  been  dispensed  with 
in  case  the  original  had  been  produced,  proof  of  execution  is  unne- 
cessary" where  the  deed  is  lost.  So  where  tlie  want  of  the  original  is 
occasioned  by  the  default  or  misconduct  of  the  adversary. ^ 

After   proof  of  the   due   execution   of  the   original,    the   contents 

should  be  proved  by  means  of  a  counterpart,^  or  other  original,  if 

there  be  one,  it  being  an  established  rule  that  all  originals   must  be 

accounted  for  before  *secondary  evidence  can  be  given  of  any 
r*5431  ... 

L         J    one  ;'  no  evidence  of  a  mere  copy  is  admissible,  until  proof  has 

been  given  that  the  counterpart  cannot  be  produced,"  even  although 

such  counterpart  was  not  stamped.''    If  there  be  no  counterpart,  a  copy 

may  be  proved  in  evidence  by  any  witness  who   knows  that  it  is  a 

copy,  from  having  compared  it  with  the  original  ;^  or  the  party  may 

Warren,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  582  ;  where  an  attested  instrument  was  in 
the  possession  of  the  other  side,  it  was  held  unnecessary  to  call  the  attesting 
witness. 

'  Goodier  v.  Lake,  1  Atk.  446. 

'  The  counterpart  of  a  lease,  purporting  to  have  been  executed  by  the  lessee  of 
a  lease  granted  by  the  mortgagor  in  conjunction  with  the  mortgagee,  cannot  be 
read  against  one  who  claims  under  the  mortgagee,  without  some  evidence  that 
the  original  lease  which  has  been  lost  was  executed  by  the  mortgagee  :  Doe  v. 
Ti-apaud,  1  Stark.  C.  (2  E.  C.  L.  R.)  281.  But  it  was  held,  that  proof  that  the 
original  lease  was  signed  by  the  mortgagee,  the  attesting  witness  not  being 
known,  would  be  sufficient  to  warrant  the  reading  of  the  counterpart:  Ibid. 

'Fritchardy.  Symonds,  B.  N.  P.  254;  E.  y.  Castleton,  6  T.  R.  236.  Per 
Parke,  B.,  in  Alioon  v.  Furnival,  1  C,  M.  &  R.  292 ;  Broivn  v.  Woodman,  6  C. 
&  P.  (25  E.  C.  L.  R.)  206 ;  infra,  note  [g). 

"  R.  V.  Castleton,  6  T.  R.  236 ;  TMrston  v.  Delahay,  Hereford  Ass.  417  ;  4  B. 
N.  P.  254,  semble,  R.  v.  Kirhy  Stephen,  B.  S.  C.  664 ;  Liebman  v.  Pooley,  1 
Stark.  C.  (2  E.  C.  L.  R.)  167;  Doxon  v.  Ilaigh,  1  Esp.  C.  409;  Alivon  v.  Fur- 
nival,  1  C. ,  M.  &  R.  292.  Where  there  are  several  parts  of  a  deed,  of  which 
one  is  in  the  hands  of  the  defendant,  who  has  notice  to  produce  it,  and  the 
others  arc  inaccessible  to  the  plaintiff,  he  may  give  a  copy  in  evidence:  Doxon 
V.  Haigh,  1  Esp.  C.  409. 

*  Where  it  was  proved  that  there  were  two  parts  of  a  deed  on  which  the 
action  was  founded,  that  executed  by  the  defendant  being  lost,  it  was  held  that 
the  counterpart  executed  by  the  plaintiff,  and  not  the  draft,  was  the  next  best 
evidence,  and  admissible  in  evidence  as  an  authenticated  copy,  although  not 
stamped:  Mann  v.  Godbold,  3  Ring.  (11  E.  C.  L.  R.)  292.  And  see  ViUiers  v. 
VilUers,  2  Atk.  71  ;  and  B.  N.  P.  254.  But  whether  a  copy  or  other  secondary 
evidence  would  not  have  been  admissible  seems  to  be  at  least  questionable:  see 
Doe  v.  Wainwrighf,  5  Ad.  ^t  E.  (31  E.  C.  L.  R.)  523. 

'  R.  X.  P.  254;  1  Kob.  117;  /.*.  v.  Kirl);/  Stephen,  B.  S.  C.  664;  Lloyd  v. 
Md.f/yn,  ID  .M.  .V:  W.  47>!,  infra,  note  (//)  ;  Crawford  and  Lindsay  Peerage,  2  II. 
of  [i.  (.'a.  534.  An  entry  in  the  register  book  at  the  custom  house,  stating  that 
a  certificate  of  a  register  was  granted  on   an   affidavit   by  A.   that  he   was  an 


HOW     PROVED     BY    SECONDARY     EVIDENCE.  544 

produce  an  *abstract,  or  give  in  evidence  a  deed  executed  ,-,.,,-, 
by  the  adversary,  in  which  the  instrument  to  be  proved  is  ^  '  J 
recited  ;''  or  even  give  parol  evidence  of  the  contents  of  a  deed.''  It 
"was  at  one  time  thought  that  the  party  who  could  not  produce  the 
original  document  was  bound  to  give  the  next  best  evidence  of  it  ; 
but  it  seems  now  to  be  settled  that,  although  the  several  means  of 
proof  above  mentioned  have  different  degrees  of  force  as  evidence, 
their  admissibility  is  not  regulated  by  such  gradations.  ^Yith  refer- 
ence to  the  question  of  admissibility  there  are  no  degrees  of  secondary 
evidence ;  but  where  it  is  admissible  at  all,  even  parol  evidence  may 
be  received,  notwithstanding  an  attested  copy,  or  other  better 
secondary  evidence,  is  in  exisrence."     It  has  been  said,  that  where 

owner,  is  not  secondary  evidence  of  the  contents  of  the  affidavit.  Some  person 
who  has  seen  and  knows  it  was  made  by  A.  must  be  called :  Teed  v.  Martin,  4 
Camp.  90.  Where  one  writing  is  offered  as  secondary  evidence  of  the  contents 
of  another,  it  is  not  necessary  to  prove  that  one  was  taken  from  the  other,  or 
that  they  have  been  collated ;  it  is  sufficient  if  both  were  copied  from  the  same 
draft,  by  a  person  who  believes  them  to  be  correct :  Medlicot  v.  Joyiier,  1  Mod. 
4.  But  as  to  a  copy  of  a  copy,  see  Eceringham  v.  Boundell,  2  M.  &  Rob.  38. 
A  machine  copy,  produced  by  the  person  who  made,  though  he  did  not  compare  it, 
is  admissible:  Simpson  v.  Thuretoii,  2  M.  &  Eob.  433.  The  contents  of  a  tablet 
in  the  church  were  admitted  without  producing  an  examined  copy :  Doe  d.  Coyle 
V.  Coyle,  6  C.  &  P.  (25  E.  C.  L.  R.)  359. 

"  SGeBurneU  v.  Lynch,  5  B.  &  C.  (11  E.  C.  L.  R.)  601  ;  Com.  Dig.,  tit.  Ev.  B. 
5;  Skipicith  v.  Shirley,  11  Ves.  64.  Such  a  deed  would,  however,  seem  to  be 
original  evidence:  see  ante,  p.  506,  note  e. 

''  Sir  E.  Seymour^s  case,  10  Mod.  S  ;  R.  v.  Motheriiuiham,  6  T.  R.  556  ;  Cocks 
V.  Kash,  ante,  p.  541  ;  Broicn  v.  (Voodman,  infra.  In  trover  against  the  sheriff 
by  assignees,  the  warrant  to  the  officer  having  been  lost,  parol  evidence  of  its 
contents  to  connect  the  officer  with  the  sheriff  was  held  to  be  admissible,  with- 
out calling  for  the  entry  in  the  book  at  the  sheriff's  office:  Moon  v.  Raphael,  7 
C.  &.  P.  (32  E.  C.  L.  R.)  115. 

*  If  proof  can  be  given  of  a  complete  copy,  such  proof  is  no  doubt  preferable 
to  a  mere  abstract,  and  it  was  once  doubted  whether  proof  of  an  abstract  was 
sufficient  where  a  copy  appeared  to  be  in  existence  :  see  Doe  (Ze?re.  jSowZaudson  v. 
Waiimriyht,  5  Ad.  &  E.  (31  E.  C.  L.  R.)  520;  Mann  v.  Godbolt,  3  Bing.  (11  E. 
C.  L.  R.)  294.  The  general  rule,  however,  seems  now  to  be  settled,  that  the 
law  does  not  i-ecognize  gradations  of  mere  secondary  evidence  after  all  in  the 
nature  of  original  evidence  has  been  accounted  for :  Doe  dem.  Gilbert  v.  Ross, 
7  M.  &  W.  102;  Hall  v.  Ball,  3  M.  &  G.  (42  E.  C.  L.  R.)  243;  Jeans  v.  Wheadon, 
2  M.  &  Rob.  486  ;  Doe  d.  Moore  v.  Williams,  Car.  &  M.  (41  E.  C.  L.  R.)  615 ; 
Brown  v.  Woodman,  6  C.  &  P.  (25  E.  C.  L.  R.)  206.  In  that  case  the  defendant 
having  given  tiie  plaintiff  notice  to  produce  a  letter,  of  Avhich  he  (the  defendant) 
had  kept  a  copy,  and  the  letter  not  being  produced,  it  was  held  that  he  might 
give  parol  evidence  of  its  contents,  and  that  he  was  not  bound  to  put  in  the 
copy.  The  principal  reason  for  this  seems  to  be  that  the  party  has  not  neces- 
sarily the  means  of  knowing  what  is  the  next  best  evidence. 


544  PRIVATE     DOCUMENTS. 

possession  lias  gone  along  with  a  deed  for  many  years,  the  original 
of  which  is  lost  or  destroyed,  an  old  copy  may  be  given  in 
*evidence,  without  proof  that  it  is  a  true  copy,  because  it 
'-  ^  may  be  impossible  to  give  better  evidence.*^  Letters  patent 
creating  a  peerage  not  being  to  be  found,  entries  in  the  Lords' 
Journals  showing  the  limitations  of  the  barony  were  admitted  by  the 
House  on  a  claim  of  peerage.*  And  an  examined  copy  of  the 
record  of  the  patent  produced  from  the  proper  oflSce,  was  admitted 
under  similar  circumstances,  on  a  claim  to  vote  at  elections  of  Irish 
peers.^  In  the  Slane  Peerage  case,  where  there  was  no  patent  of 
creation  or  enrolment  to  be  found,  and  the  contemporary  Lords' 
Journals  were  not  in  existence,  an  old  book  purporting  to  be  copied 
from  them  by  an  officer  of  the  House,  whose  duty  it  Avas  to  prepare 
lists  of  peers  present  and  absent,  was  received  as  evidence  of  the 
fact  of  a  peer  sitting  in  parliament.^  The  registry  of  a  conveyance 
in  a  register  county  is  not  evidence,  unless  the  defendant  has  had 
notice  to  produce  the  conveyance,  or  it  is  lost.*^ 

*  After  proof  of  ineffectual  search  for  the  deed  of  endow- 
L  ^    ment  of  a  vicarage,  a  chartulary  of  an  abbey  to  which  the 

rectory  formerly  belonged,  stating  the  particulars  of  endowment,  and 
found  in  the  possession  of  the  owner  of  the  abbey  lands,  is  admissible 

^  B.  N.  P.  254  :  Style  253.  The  reason  that  it  may  be  impossible  to  give  bet- 
ter evidence  is  by  no  means  a  satisfactory  one  ;  and  in  general  the  contingent 
impossibility  of  procuring  better  evidence  will  not  warrant  the  admission  of 
evidence  which  is  in  itself  otherwise  defective.  The  reception  of  evidence  from 
necessity  must  be  founded  on  a  general  necessity,  or  probability  of  the  failure  of 
all  other  and  superior  evidence  ai-ising  out  of  the  nature  of  the  case  ;  as  formerly 
in  the  instance  of  servants  and  agents.  Qu-,  whether  in  the  above  case  such  a 
copy  would  be  evidence,  without  some  proof  of  its  being  a  true  copy  of  a  lost 
original.  See  Bac.  Abr.,  Evid.  F.  And  where  possession  had  gone  with  the 
deed  (an  agreement  of  demise)  for  sixty  years,  and  the  deed  could  not  be  found 
in  the  muniment  room  of  the  plaintiif,  but  a  paper  purporting  to  be  an  attested 
copy  was  found  there,  both  the  attesting  witnesses  to  which  were  dead,  and  it 
was  proved  that  persons  of  the  names  of  the  attesting  witnesses  to  the  original 
were  also  dead  ;  Pollock,  C.  B.,  refused  to  admit  the  copy  in  evidence:  Brindlep 
V.  Woodhouse,  1  C.  &  K.  (47  E.  C.  L.  R.)  G47. 

*  Barony  of  Saye  and  Sele,  1  H.  of  L.  Cases  507. 

'  Lord  LainesboroiKjli s  case,  1  II.  of  L.  Cases  510. 

8  5  CI.  &r.  21. 

^  Multon  V.  Harris,  2  Esp.  549.  An  examined  copy  of  the  I'cgistry  of  a  deed 
in  a  register  county,  is  admissible  as  secondary  evidence :  Doe  v.  Kilner,  2  Car. 
,t  P.  (12  E.  C.  L.  K.)  289  ;  Collins  v.  Maule,  8  Car.  &  P.  (34  E.  C.  L.  R.)  502; 
but  it  has  been  said  only  against  the  parties  to  it,  or  tliose  who  claim  under 
them :  Doe  d.  Loscombe  v.  Clijord,  2  Car.  &  K.  (61  E.  C.  L.  R.)  452. 


HOW     PROVED     BY    SECONDARY    EVIDENCE.  547 

as  secondary  evidence.'  In  *tlie  Fitzivalter  Peerage  case  a  ^^^ .,,-, 
copy  of  a  will  produced  from  the  prerogative  office  -was  re-  ^  '  J 
ceived,  after  proof  that  searcli  had  been  made  for  the  original,  and 
that  the  practice  of  the  office,  at  the  date  of  the  will,  was  to  give  out 

'  Upon  tlie  trial  of  an  issue,  whether  a  particular  farm  in  the  parish  of  S.  N. 
was  discliar^od  of  tithes  on  payment  of  a  modus,  after  proof  of  an  ineffectual 
search  for  the  original  endowment  and  appropriation,  a  book  was  produced, 
said  to  be  an  old  ledger  or  chartulary  of  the  abbey  of  Glastonbury,  from  the 
muniment-room  of  the  Marquis  of  Bath  (the  owner  of  the  abbey  lands),  con- 
taining entries,  showing  that  at  the  time  of  those  entries  the  small  tithes  were 
assigned  to  the  vicar,  no  mention  being  made  of  any  money  modus ;  the  book 
contained  also  other  entries  relating  to  the  appropr'ation  of  the  rectory  and  en- 
dowment of  the  vicarage.  This  book  having  been  rejected  on  the  trial,  on  a 
motion  for  a  new  trial  its  admissibility  was  objected  to  on  two  grounds:  1st, 
that  it  had  not  been  shown  to  have  belonged  to  the  abbey  of  Glastonbury  ;  and 
2d,  that  the  evidence  did  not  bear  upon  the  facts  in  issue.  But  upon  the  first 
objection,  the  court  was  of  opinion,  that  search  having  been  made  as  was 
admitted,  in  every  place  where  the  endowment  itself  might  be  expected  to  be 
found,  and  none  being  found,  a  copy  was  evidence.  That  such  a  book,  con- 
taining a  description  of  the  estates  of  an  abbey,  and  the  transactions  concern- 
ing them,  would  on  the  dissolution  of  the  abbey,  go  to  the  ofiicers  of  the  Crown, 
and  from  them  to  the  grantees  under  the  Crown  ;  and  consequently,  that  the 
only  possible  v.'ay  of  showing  the  connection  between  the  book  and  the  abbey 
was  by  proving  a  connection  between  the  possessor  and  the  Crown,  by  showing 
him  to  be  in  possession  of  lands  which  passed  from  the  abbey  to  the  Crown,  and 
from  the  Crown  to  the  grantee.  That  supposing  the  book  to  have  been  traced 
to  the  custody  of  the  abbot,  the  account  it  contained  of  the  particular  matters 
of  endowment  was  admissible,  the  endowment  itself  not  having  been  found 
after  such  in  the  natural  places  of  deposit :  Bullen  v.  Michell,  2  Price  399. 
Judgment  was  afiirmed  in  the  House  of  Lords,  4  Dow.  298.  Lord  Redesdale  in 
giving  his  judgment,  observed  that  as  the  original  instruments  would,  if  they 
could  have  been  produced,  have  been  admissible  in  evidence,  the  only  question 
was,  whether  the  entries  in  the  book  were  evidence  of  the  license  of  appropria- 
tion and  endowment.  That  they  were  admissible  as  the  next  best  evidence  that 
could  be  produced.  The  two  instruments  seemed,  he  said,  to  have  been  copied 
by  a  person  employed  for  the  purpose,  probably  one  of  the  monks,  and  deposited 
among  the  muniments  of  the  abbey,  that  the  instruments  might  be  preserved. 
And  for  the  same  reason  it  might  be  presumed  that  they  were  faithful  copies  : 
at  least  there  appeared  to  have  existed  no  motive  to  make  them  otherwise,  and 
they  were  found  in  a  situation  where  they  were  likely  to  be  kept.  See  also  13 
M.  &  W.  267  ;  and  ante,  p.  528.  A  copy  of  a  lost  decree  establishing  manorial 
customs  against  the  lord,  and  found  amongst  his  papers,  is  secondary  evidence 
of  the  decree  against  him,  for  its  place  of  deposit  shows  that  it  was  considered 
to  be  a  copy :  Price  v.  Woodhouse,  3  Ex.  616  ;  but  it  is  not  evidence  as  an  ad- 
mission of  the  facts.  So  an  office  copy  of  a  decree  produced  by  the  lord  as  evi- 
dence of  the  custom,  being  lost,  secondary  evidence  of  that  copy  was  admitted : 
Ibid. 

33 


547  PRIVATE     DOCUMENTS. 

the  original  nfter  making  copies.''  And  in  the  same  case  an  old 
attested  copy  of  a  deed  of  settlement,  produced  from  the  proper  cus- 
tody, Avas  received  after  proof  of  unsuccessful  search  for  the  original, 
and  that  the  possession  of  the  estates  comprised  in  the  settlement 
went  with  the  copy. 

After  notice  to  the  plaintiff  to  produce  a  letter,  which  he  admitted 
to  have  received  from  the  defendant,  it  was  held,  that  an  entry  by  a 
deceased  clerk  in  a  letter-book,  professing  to  be  a  copy  of  a  letter 
from  the  defendant  to  the  plaintiff,  of  the  same  date,  was  admissible 
evidence  of  the  contents,  proof  having  been  given,  that  according  to 
the  course  of  business,  letters  of  business  written  by  the  plaintiff 
were  copied  by  this  clerk,  and  then  sent  off  by  the  post;'  and  Lord 
r*f^J.ST  Ellenborough  observed,  that  if  such  *evidence  were  not  to  be 
admitted,  the  most  careful  merchant  would  be  unable  to 
prove  the  contents  of  a  letter  after  the  death  of  his  entering  clerk. 

In  proving  the  contents  of  a  letter,  it  is  not  necessary  to  call  the 
clerk  who  wrote  the  letter,  although  his  testimony  may  be  had.  It 
is  sufficient  to  prove  it  by  any  other  witness  who  recollects  the  con- 
tents ;  for  it  is  merely  contingent  whether  the  clerk  who  wrote  the 
document  would  recollect  its  contents  better  than  any  other  person." 
Where  a  secretary  had  made  entries  of  the  licenses  granted  by  the 
governor  of  a  colony,  in  a  memorandum  book,  on  proof  of  loss  of  the 
license,  it  was  held  that  parol  evidence  might  be  given  of  the  con- 
tents Avithout  producing  the  book,  and  that  if  the  book  were  to  be 
produced  it  could  not  be  read  in  evidence,  and  would  be  of  no  use 
except  to  refresh  the  memory  of  the  witness. ° 

"  lOCl.  &r.  946. 

'  Pritt  V.  Fairclovgh,  3  Camp.  305 ;  in  this  case  Lord  Ellenborough  laid  stress 
upon  the  circumstance  that  the  defendant  had  admitted  the  receipt  of  the  letter, 
and  might  rehut  the  evidence  by  producing  the  original ;  but  even  if  there  had 
been  no  sucli  admissions,  it  seems  that  the  evidence  would  have  been  admissible. 
So  the  copy  of  a  letter,  accompanied  with  a  memorandum,  in  the  handwriting 
of  a  deceased  clerk,  purporting  that  the  original  had  been  forwarded  by  him, 
was  admitted  as  evidence,  upon  proof  that  this  was  his  usual  mode  of  trans- 
acting business :  Hagedorn  v.  Reid,  3  Camp.  370 ;  see  also  Roberts  v.  Bradshaw, 
1  Stark.  C.  (2  E.  C.  L.  R.)  28  ;  Tooseij  v.  Williams,  Moo.  &  M.  (22  E.  C.  L.  R.) 
129-,  Lord  Melville  scase.  29  ;  How.  St.  Tr.  734;  Siurje  v.  Buchanan,  10  A.  &  E. 
(37  E.  C.  L.  R.)  598  ;  and  ante,  p.  494. 

"  Leibman  v.  Fooley,  1  Stark.  C.  (2  E.  C.  L.  R.)  167. 

°  Kensington  v.  Inglis,  8  East  273.  In  this  case  the  entry  in  the  memorandum- 
book  does  not  appear  to  have  been  a  copy  of  the  document  which  the  witness 
could  have  sworn  to  as  such,  but  merely  a  memorandum  of  the  fact  that  such  a 
license  had  been  granted. 


HOW     PROVED     BY    SECONDARY    EVIDENCE.  548 

Where  a  license  from  the  Crown  has  been  lost,  the  contents 
should  be  proved  by  the  registry  at  the  Secretary  of  State's  officeJ' 

*In  the  case  of  Bullen  v.  3IicheU,'^  it  was  held  then  an  old  r;}:rin-i 
ledger  or  chartulary  of  the  abbey  of  Glastonbury  was  admis- 
sible as  secondary  evidence  of  a  license  of  appropriation  and  of  the 
endowment  of  a  vicarage,  as  between  the  vicar  and  occupier  of  a 
farm,  upon  the  question  whether  the  farm  was  discharged  of  tithes 
on  payment  of  a  modus.      And  it  being  considered  that  the  book 

1  Rhind  v.  Wilkinson,  2  Taunt.  237.  Or  rather  may  be  so  proved :  see  ante, 
note  (c).  Upon  the  impeachment  of  Lord  Melville,  29  How.  St.  Tr.  714,  it  was 
proposed  to  prove  the  contents  of  a  letter  of  attorney,  under  which  it  was  al- 
\eged  that  Mr.  Douglas  had  been  directed  by  Lord  Melville  to  apply  to  the 
Treasury  for  moneys  from  time  to  time  as  his  paymaster  ;  and  for  this  purpose 
the  managers  offered  in  evidence  an  entry  in  a  book  kept  in  the  Exchequer, 
which  book  contained  copies  of  all  the  letters  of  attorney  for  the  receipt  of 
money  at  the  Exchequer.  No  such  letter  had  been  found,  after  diligent  search, 
among  Mr.  Douglas'' s  papers,  shortly  after  his  death,  but  it  was  proved  that  an 
official  order  had  been  made  out  for  Mr.  Douglas  to  receive  the  money  under  a 
letter  of  attorney  ;  and  the  fact  of  Mr.  Douglases  appointment  as  paymaster  was 
proved  by  a  letter  in  Lord  Mdville's  handwriting,  and  the  clerk  of  the  office 
proved  that  he  had  made  the  entry  from  an  official  letter  of  attorney.  After 
argument,  the  entry  was  rejected.  There  is  no  legal  proof  (said  the  Lord  ChaH- 
cellor)  of  Lord  MelvilWs  handwriting,  and  it  does  not  appear  whether  the  at- 
testing witnesses  are  living  or  dead  ;  nor  does  it  appear  that  Mr.  Douglas  ever 
received  any  money  under  that  appointment.  For  these  reasons  it  was  deter- 
mined that  the  managers  had  not  entitled  themselves  to  read  the  paper.  Upon 
this  the  managers  proceeded  further,  and  tendered  in  evidence,  a  certificate 
signed  by  Mr.  Douglas  as  paymaster,  and  given  by  him  to  the  Navy-office, 
acknowledging  the  receipt  of  money  by  him  at  the  Exchequer.  The  managers 
then  produced  entries  in  the  bank  books,  signed  by  Lord  Melville  and  Mr. 
Douglas,  in  the  common  form  of  opening  an  account ;  and  afterwards  called  a 
witness,  whose  name  and  description  corresponded  with  the  name  and  descrip- 
tion of  one  of  the  attesting  witnesses  in  the  proposed  entry  ;  and  this  witness 
stated  that  he  had  some  recollection,  though  very  slight  (for  the  entry  bore  date 
about  twenty-four  years  before  this  time),  of  providing  a  stamp  for  the  power 
of  attorney  from  Lord  Melville  to  Mr.  Douglas  and  of  attesting  it  at  the  Navy 
Pay-office.  Upon  this  evidence  the  Lord  Chancellor  declared  his  opinion  that 
the  entry  was  admissible,  and  the  Lords  allowed  it  to  be  read.  Where  a  sur- 
render of  a  copyhold  was  stated  to  have  been  made  by  power  of  attornej',  the 
court  roll,  stating  that  fact,  is  good  secondary  evidence  of  it:  Doe  dem.  Counsell 
v.  Caperton,  9  Car.  &  P.  (38  E.  C.  L.  R.)  112.  In  the  Crawford  and  Lindsay 
Peerage  case,  2  H.  of  L.  Cases  547,  copies  of  the  Rotuli  Scoitje,  printed  by  the 
Record  Commissioners,  were  rejected,  because  it  was  not  shown  that  the  original 
i"oll  was  not  extant. 

P2  Pri.  299;  supra,  note  [i).  So  in  Williams  v.  Wilcox,  8  A.  &  E.  (35  E. 
C.  L.  R.)  314,  a  copy  of  a  grant  in  an  old  chartulary  was  admitted  as  secondary 
evidence. 


549  PRIVATE     DOCUMENTS. 

under  the  circumstances  came  from  the  proper  repository,  it  was  held, 
r*'"f;n'i  ^^^^  *^*'  ^-fforded  sufficient  secondary  evidence  to  prove  the 
two  ii!struments.  The  court  said  the  two  instruments  seem 
to  have  been  copied  by  a  person  employed  for  the  purpose,  probably 
one  of  the  monks,  and  deposited  among  the  muniments  of  the  abbey, 
because  it  was  important  for  the  interests  of  the  abbey  that  the  in- 
struments should  be  preserved. 

Where  it  was  proved  that  the  house  of  a  party  in  whose  custody 
marriage  articles  ought  to  have  been,  had  been  occupied  and  pillaged 
by  rebels  and  foreign  troops,  and  that  after  diligent  search  amongst 
his  papers  they  could  not  be  found,  it  was  held  that  a  recital  of  them, 
in  a  case  submitted  to  counsel  at  the  time,  and  charged  for  and  en- 
tered as  paid  by  the  family  attorney,  was  admissible  as  secondary 
evidence/ 

Where  the  plaintiff,  on  being  called  upon  to  produce  a  grant  pro- 
duced an  ancient  parchment,  without  either  signatures  or  seals,  it 
was  held  to  have  been  rightly  received,  as  a  document  coming  out  of 
the  hands  of  the  opposite  party,  and  not  as  a  deed,  nor  as  evidence 
of  one.^ 

Where  an  assignment  had  been  lost  before  it  had  been  entered  of 
record,  pursuant  to  the  6  Geo.  IV.,  c.  16,  s.  96,  it  was  held  that 
secondary  evidence  of  it  was  admissible.' 

In  proving  an  examined  copy,  it  is  sufficient  to  prove  that  whilst 
one  read  the  original,  the  other  read  the  copy." 

If  the  deed  or  other  instrument  be  in  the  possession  of  the  adver- 
sary in  a  civil,  or  of  the  defendant  in  a  criminal  case,  proof  must 
be  »iven  of  that  fact  f  and  it  must  next  be  shown  that  the  adverse 
r*f;c:-i-i  party,  or  his  attorney,  has  *had  notice  to  produce  it.^  It 
has  been  said  that  this  rule  applies,  even  where  there  is  evi- 

■■  Lord  Lorton  v.  Gore,  1  Dow,  N.  S.  190. 

^  Tijrwhii  V.  Wynne,  2  B.  &  Aid.  ^)o4.  It  was  held  to  be  entitled  to  but  little 
credit,  since  the  acts  of  enjoyment  had  been  inconsistent  with  it. 

'  Giles  V.  Smith,  1  C,  ^I.  &  R.  462. 

"  liolfe  V.  Dart,  2  Taunt.  52.  But  see  Slane  Peerage  case,  5  CI.  &  F.  24,  aiite, 
p.  271.  It  mi^ht  be  admissible  as  secondary  evidence  in  a  case  where  an  exam- 
ined copy  is  not  required. 

^  Where  it  was  sworn  that  the  original  lease  had  been  stolen  from  the  plain- 
tiff by  a  party,  at  the  instigation  of  the  defendant,  who  either  had  it,  or  knew 
where  it  was,  and  there  was  no  denial  on  tlic  \)ix\-t  of  the  defendant,  the  Court 
made  a  rule  a])solute,  in  order  to  enable  the  plaintitf  to  give  secondary  evidence 
of  its  contents  :  Doe  dem.  Pearson  v.  Pies,  7  Bing.  (20  E.  C.  L.  R.)  724. 

y  R.  V.  StoL-e  Goldiny,  1  B.  &  Aid.  173;  Knight  v.  Marquis  of  WaterJ'urd,  4 
Y.  &  C.  284.     In  trover  for  goods,  against  a  carrier  who  set  up  a  general  lien, 


HOW    PROVED     BY    SECONDAllY    EVIDENCE.  551 

dence  to  prove  the  destruction  of  the  instrument.^  Proof  of  the 
delivery  of  a  paper  to  the  servant  of  the  defendant  without  calling 
the  servant,  was  in  a  criminal  case  held  to  be  insufficient  proof  of  the 
possession  of  the  paper  by  the  defendant.*  But  proof  that  a  deed 
came  into  the  hands  of  the  defendant's  brother,  under  whom  the  de- 
fendant claimed,  was  held  to  warrant  the  reading  of  a  copy,''  even 
although  the  defendant  had  sworn,  in  an  answer  in  Chancery,  that 
he  had  not  got  the  original.  Proof  of  this  kind  must  depend  much 
upon  the  circumstances  of  the  particular  case."  The  fact  of  the  ad- 
versary's possession  may  be  proved  by  circumstances,  and  for  this 
purpose  the  particular  course  of  duty  and  office  is  admissible  to  raise 
a  presumption  of  such  possession.'*  Presumptive  evidence  having 
been  given  *that  the  defendant  had  obtained  his  certificate  r*^f;9-i 
under  a  commission  of  bankrupt,  it  was  presumed  that  it  was 
in  the  defendant's  possession.®  So  an  appointment  of  an  officer  as 
an  overseer  is  presumed  to  be  in  the  possession  of  the  officer.^ 

evidence  offered  by  the  defendant,  that  bills  delivered  by  him  to  the  plaintiff 
contained  a  statement  that  all  goods  carried  by  the  defendant  were  to  be  subject 
to  such  lien,  was  rejected  without  a  notice  to  produce  the  bills:  Jones  v.  Tarle- 
ton,  9  M.  &  W.  675 ;  Lawrence  v.  Clarke,  14  M.  &  W.  250.  Even  in  penal 
actions  and  criminal  proceedings,  notice  to  the  defendant's  attorney  is  suffi- 
cient: Cates  V.  Winter,  3  T.  R.  306  ;  B.  v.  Watson,  2  Stark.  C.  (3  E.  C.  L.  R.) 
129. 

^  Doe  V.  Morris,  3  Ad.  &  El.  (30  E.  C.  L.  R.)  46.  This  is  conBned  to  the  case 
of  destruction  after  it  came  into  the  adversary's  possession,  for  he  might  dis- 
pute its  destruction  :  tamen  quaere,  Foster  v.  Pointer,  post,  note  [u). 

^  R.  V.  Pearce,  Peake's  C.  75;    Gordon'' s  case,  1  Leach  300. 

''  Pritchard  v.  Symonds,  Hereford  Ass.  1744 ;  B.  N.  P.  254. 

<=  Baldney  v.  Ritchie,  1  Stark.  C.  (2  E.  C.  L.  R.)  338. 

*  See  Hetherington  v.  Kemp,  4  Camp.  193;  Hagedorn  v.  Reid,  3  Camp.  370; 
Toosey  v.  Williams,  Moo.  &  M.  (22  E.  C.  L.  R.)  129.  The  defendant's  clerk 
produced  a  letter-book  containing  the  copy  of  a  letter  in  his  handwriting;  the 
course  was,  for  the  clerk  to  copy  all  such  letters  (to  India),  which,  when  copied, 
were  delivered  to  the  defendant  to  be  sealed,  and  then  carried  by  the  witness  or 
another  clerk  to  the  India-house  ;  there  was  no  particular  place  of  deposit  in 
the  office  for  the  letters  to  be  so  carried  ;  both  the  clerks  swore  that  they  always 
carried  the  letters  delivered  to  them  for  that  purpose,  but  neither  of  them  had 
any  recollection  of  the  particular  letter.  Lord  Tenterden,  with  great  reluctance, 
rejected  the  evidence,  observing,  that  the  practice  differed  from  that  in  most 
counting-houses  ;  and  that,  if  the  duty  of  the  clerks  had  been  to  see  the  letters 
so  copied  carried  to  the  post-office,  it  might  have  been  done  (see  Rohb  v.  Starkey, 
2  Car.  &  K.  (61  E.  C.  L.  R.)  143  ;  Eastern  U.  R.  Company  v.  Symonds,  5  Ex. 
237),  but  that  there  was  something  else  to  be  done,  and  that  by  the  defendant. 

*  Henry  v.  Leigh,  3  Camp.  C.  502. 

'An  indenture  of  apprenticeship,  made  1797,  having  been  signed  only  by  one 


552  PRIVATE     DOCUMENTS, 

Proof  that  a  letter  was  sent  to  a  party  purporting  to  enclose  a  bill, 
and  that  a  bill  answering  the  description  in  the  letter  was  shortly 
after  in  the  possession  of  that  party,  was  held  to  be  presumptive  evi- 
dence that  he  received  both  letter  and  bill>' 

Where  an  apprentice  deed  is  cancelled  by  the  master  on  payment 
of  money,  he  is  bound  to  deliver  the  indenture  up  to  the  apprentice.'' 
r*-rQi  Documents  relating  to  an  estate  *are  presumed  to  have  been 
delivered  to  an  assignee.'  The  fact  of  a  letter  having  been 
sent  to  a  deceased  party  several  years  before  her  death,  was  held  to 
be  insufficient  to  found  a  presumption  that  it  was  in  the  possession  of 
her  executrix.-" 

A  party  after  notice  to  produce  a  document,  cannot  get  rid  of  it 
by  transferring  the  possession  of  the  instrument  to  another  person 
before  the  trial,  for  this  is  in  fraudem  legis.^ 

In  some  instances  it  is  sufficient  to  show  that  the  instrument  is  in 
the  actual  possession  of  one  who  is  in  privity  with  a  party,  for  then 
the  possession  of  the  one  is  in  law  the  possession  of  the  other. 
Where  the  action  was  brought  against  the  owner  for  goods  supplied 
for  the  use  of  the  vessel,  and  proof  was  given  that  the  order  for  the 

overseer  of  the  appellant  parish,  the  respondent  parish,  to  show  that  only  one 
had  been  appointed  in  that  year,  called  upon  the  appellants  to  produce  the 
original  appointment  (having  given  them  notice  to  produce  all  books  and  writ- 
ings relating  thereto)  ;  one  book  only  was  produced,  and  that  was  not  for  the 
year  1797.  Held,  that  the  respondents  not  having  taken  any  means  to  procure 
the  testimony  of  the  overseer  himself  (who  must  be  presumed  to  have  the 
custody  of  the  original  appointment),  were  not  entitled  to  give  secondary  evi- 
dence of  its  contents  :  Bex  v.  Leicester,  1  B.  &  Aid.  173. 

8  Kieran  v.  Johnson,  1  Stark.  C.  (2  E.  C.  L.  R.)  109. 

"  B.  v.  Rarberton,  1  T.  R.  ill. 

•  Goodfitle  v.  Saville,  16"  East  91,  n.  ;  Doe  clem.  Richards  v.  Lewis,  20  L.  J., 
C.  P.  171. 

J  Drevj  v.  Durnborough,  2  Car.  &  P.  (12  E.  C.  L.  R.)  198.  But  this  case  does 
not  seem  to  have  been  decided  with  a  view  to  the  question  of  the  admissibility 
of  secondary  evidence. 

''  Knicjht  V.  Martin,  1  Gow  (5  E.  C.  L.  R.)  26;  and  see  Leeds  v.  CooJc,  4  Esp. 
C.  256,  and  infra,  p.  562.  But  where  notice  had  been  given  to  the  party,  and 
upon  a  second  trial  was  served  upon  the  attorney,  who  informed  the  party  serv- 
ing it  that  the  instrument  had  been  assigned  to  some  one  whom  he  did  not 
know,  without  his  privity  or  knowledge,  it  was  held  that  the  service  was  in- 
sufficient without  further  inquiry  from  the  defendant:  Ibid.  Where  a  party 
had  notice  to  produce  an  instrument,  and  did  not  say  he  had  not  got  it,  although 
in  fact  he  had  delivered  it  at  the  Stamp-office,  the  adversary  was  permitted 
to  give  secondary  evidence:  Sinclair  v.  Stephenson,  1  C.  &  P.  (12  E.  C.  L.  R) 
582.  And  see  Doe  dem.  Pearson  v.  Ities,  7  Ring.  (20  E.  C.  L.  R.)  724;  supra, 
note  (x). 


WHEN     IN     POSSESSION     OF     ADVERSARY.  553 

goods  was  in  possession  of  the  captain,  it  was  held  that  the  proof  of 
possession  was  sufficient.'  So,  for  this  purpose,  possession  by  the 
under-sheriff  is  possession  by  the  sheriff.™  Possession  by  tlie  banker 
of  the  party  is  possession  by  the  latter." 

A  joint  notice  having  been  given   to  two  executors,  one    r*rr4-| 
*of  whom  has  suffered  judgment  by  default,  secondary  evi- 
dence is  admissible  of  a  receipt  proved  to  be  in  the   possession  of  the 
latter." 

This  rule  is  inapplicable  where  the  party  to  the  suit  has  not  a 
right  to  retain  as  well  as  inspect  the  document,  as  where  it  is  not  in 
the  possession  of  a  party  in  the  cause,  but  of  a  stakeholder,  between 
him  and  a  third  person  ;p  nor  does  it  apply  where  the  party  to  the 
suit  justifies  under  another  who  has  possession  of  the  paper  in  an  in- 
dependent character. •!  But  the  fact  that  a  judge  has  made  an  order 
on  the  plaintiff,  to  admit  a  certain  document  to  be  a  true  copy  of  a 
letter  written  by  him  to  the  defendant,  will  not  enable  the  latter  to 
give  that  copy  in  evidence,  without  proof  that  the  plaintiff  has  the 
original  in  his  possession,  and  has  had  notice  to  produce  it." 

The  question  whether  possession  of  a  document  by  the  opposite 
party  is  sufficiently  established  is  solely  for  the  judge,  and  that 
party  may  interpose  evidence  upon  that  question  to  show  that  he 
has  it  not,  which  will  not  entitle  the  other  side  to  any  reply  to  he 
jury.' 

'  Baldney  v.  Ritchie,  1  Stark.  C.  (2  E.  C.  L.  R.)  338. 

■"  Taplin  v.  Attij,  Ry.  &  Moo.  (21  E.  U.  L.  R.)  164  ;  3  Ring.  (11  E.  C.  L.  R.) 
164. 

-  Partridge  v.  Coates,  Ry.  &  M.  (21  E.  C.  L.  R.)  156.  And  see  Sinclair  v. 
Stephenson,  1  C.  &  P.  (12  E.  C.  L.  R.)  582;  Burton  v.  Payne,  2  C.  &  P.  (12  E. 
C.  L.  R.)  520. 

»  Beckwith  v.  Bonner,  6  C.  &  P.  (25  E.  C.  L.  R.)  682. 

P  Parry  v.  May,  1  M.  &  Rob.  279. 

■J  Evans  v.  Sweet,  R.  &  M.  (21  E.  C.  L.  R.)  83  ;  and  see  Pritchard  v.  Symonds, 
B.  N.  P.  254 ;  E.  V.  Pearce,  Peake's  C.  76.  Where  a  party  in  possession  of 
books,  &c.,  belonging  to  a  committee,  of  which  he  had  been  a  member,  had  them 
delivered  to  him  as  a  member  of  another  society,  which  had  subsequently  occu- 
pied the  same  office  ;  held  that  he  could  not  be  deemed  to  be  so  connected  with 
the  former  as  to  let  in  secondary  evidence  of  the  contents,  after  notice  to  the 
defendants,  his  former  coadjutors,  he  holding  them  in  a  new  character  [per  Tin- 
dall,  C.  J.  ;  Whifford  v.  Tutin,  6  C.  &  P.  (25  E.  C.  L.  R.)  228  ;  s.  c,  10  Ring. 
(25  E.  C.  L.  R.)  395. 

■•  Sharpe  v.  Lamb,  11  A.  &  E.  (39  E.  C.  L.  R.)  802. 

»  Harvey  v.  Mitchell,  2  M.  &  Rob.  366 ;  Smith  v.  Sleap,  1  Car.  &  K.  (47  E.  C. 
L.  R.)  46.  As  to  what  is  sufficient  evidence,  see  Robb  v.  Starkey,  2  Car.  &  K. 
(61  E.  C.  L.  R.)  143.     Such  evidence,  too,  it  would  appear,  being  for  the  judge, 


554  PRIVATE    DOCUMENTS. 

The   instrument  having   been   proved  to   be  in   the  possession   of 
the  adversary,  the  next  step  is   to   prove  the  notice  to  produce  it.^ 

ought  to  be  given  on  the  voir  dire;    Cleave  v.  Jones,  Hereford  Sumra.  Ass.  1851, 
coram  Erie,  J. 

'  A  refusal  to  produce  books  or  papers  upon  notice  given  does  not  warrant  the 
presumption  that  if  produced  they  would  show  the  facts  to  be  as  alleged  by  the 
party  giving  notice  ;  the  only  effect  is,  that  parol  evidence  of  their  contents  may 
be  given,  and  if  such  secondary  evidence  be  imperfect,  vague  and  uncertain  as  to 
dates,  suras,  &c.,  every  presumption  will  be  against  the  party  who  might  remove 
all  doubts  by  producing  the  higher  evidence :  Life  and  Fire  Ins.  Co.  v.  Mechanics' 
Lis.  Co.,  7  Wend.  31.  Parol  evidence  of  the  contents  of  a  paper  required  to  be 
produced  on  the  trial  of  a  cause  cannot  be  given  until  its  genuineness  be  estab- 
lished by  proof,  but  if  a  paper  is  produced  on  notice,  such  proof  is  unnecessary  : 
McPherson  v.  Rathbone,  7  Wend.  216.  Where  notice  before  suit  brought  is  the 
foundation  of  action,  parol  evidence  of  its  contents  cannot  be  given  until  all  proper 
measures  have  been  fruitlessly  taken  to  produce  it ;  but  when  the  notice  relates 
merely  to  some  collateral  fact,  parol  evidence  of  its  contents  is  admissible  : 
McFadden  v.  Kingsbury,  11  Wend.  677.  Where  the  plaintiff  gave  notice  to  the 
defendant  to  produce  on  the  trial  an  original  paper  in  his  possession,  a  copy  of 
which  was  annexed  to  the  notice,  and  it  appeared  by  the  testimony  of  witnesses 
that  the  supposed  copy  materially  differed  in  one  particular  from  the  original : 
it  was  held,  that  notwithstanding  such  differences  the  notice  was  sufficient  to 
entitle  the  plaintiff  to  give  parol  evidence  of  the  original,  it  being  manifest  from 
all  the  circumstances  that  the  defendant  must  have  understood  what  paper  was 
intended  to  be  referred  to  in  the  notice:  Bogart  v.  Brown,  5  Pick.  18.  But 
such  copy  annexed  to  the  notice  cannot  be  used  in  evidence  by  the  party  having 
the  original  in  possession ;  and  where  a  party  refuses  to  produce  an  original 
paper  in  his  possession,  and  thereupon  the  other  party  is  permitted  to  give 
parol  evidence  of  its  contents,  the  party  who  has  the  possession  of  the  paper 
will  not  be  permitted  to  contradict  such  evidence,  but  he  will  be  permitted  to 
prove  that  no  such  paper  ever  existed,  for  the  purpose  of  rebutting  parol  evi- 
dence of  its  contents:  Ibid.  He  who  has  not  and  is  not  entitled  to  the  posses- 
sion of  a  deed  or  public  paper  cannot  be  compelled  to  produce  it :  Denton  v. 
Hill,  4  Ilayw.  73.  Nor  can  a  copy  be  given  in  evidence  where  the  opposite 
party  has  produced  the  original  under  notice  :  Dean  v.  Carnahan,  7  Mart.  N. 
S.  2.58.  A  party  wishing  to  avail  himself  in  evidence  of  a  paper  in  the  posses- 
sion of  the  attorney  of  his  adversary  must  give  notice  to  produce  it ;  he  cannot 
have  the  benefit  of  the  evidence  by  subpoenaing  the  attorney  to  produce  it  or 
compelling  him  to  testify,  if  it  was  delivered  to  him  by  his  client  as  supporting 
the  action  or  defence:  McPherson  v.  Rathbone,  7  Wend.  216  ;  Jackson  v.  Denni- 
son,  4  Wend.  558 ;  Lagen  v.  Patterson,  1  Blackf.  328.  A  notice  to  the  attorney 
of  a  defendant  to  produce  on  the  trial  a  certain  letter  Svritten  by  the  plaintiff  to 
the  defendant  concerning  an  execution  which  was  produced  on  a  former  trial  in 
the  same  cause  and  "  all  other  papers  in  your  custody  or  power  relating  to  the 
matters  in  controvcnsy  in  this  cause,"  was  held  to  be  sufficiently  explicit  to 
apprise  the  attorney  that  the  execution  referred  to  in  such  letter  was  one  of  the 
papers  which  he  was  called  upon  and  expected  to  produce,  especially  when  it 
was  shown  that  on  such  former  trial  the  letter. and  execution  had  been  pro- 


NOTICE    TO     PRODUCE.  555 

It   is  sufficient   to    prove   service   of   notice   to    *produce   a    r*r-n 

.  .  L  5'^'^J 

deed  or  other  instrument  either  on   the  party  or  his  attor- 
ney, in  criminal  as  well  as  civil  cases. "^     This  must  appear  to  be  a 

^  Attorney- General  v.  Le  Merchant^  2  T.  R.  201;  R.  v.  Watson,  Ibid.  199; 
Gates  V.  Winter,  3  T.  R.  306 ;  Trist  v.  Johnson,  1  M.  &  Rob.  259  ;  R.  v.  Eli- 
combe,  Ibid.  260.  The  notice,  it  seems,  ought  to  be  served  on  the  attorney  in  a 
cause,  if  there  be  one  :  per  Gurncy,  B.,  Houseman  v.  Roberts,  5  C.  &  P.  (24  E. 
C.  L.  R.)  394.  Where  the  attorney  has  been  chan(i;ed,  a  notice  served  on  the 
first  attorney,  whilst  he  was  attorney,  is  sufficient:  Doe  v.  Martin,  1  M.  &  Rob. 
242.  It  is  to  be  presumed  that  a  party  who  goes  abroad  leaves  with  his 
attorney,  who  is  to  conduct  the  trial,  all  necessary  papers  :  Bryan  v.  Wagstqff^ 
R.  &  M.  (21  E.  C.  L.  R.)  327  ;  and  perhaps  this  rule  ought  to  be  extended  to 
cases  of  parties  resident  in  England,  where  the  document  is  necessarily  con- 
nected with  the  cause,  or  the  transaction  in  question  :  in  Afflalo  v.  Fourdrinier, 
M.  &  M.  (22  E.  C.  L.  R.)  335  ;  e.  g.,  the  writ :  Gibbons  v.  Powell,  9  Car.  &  P. 
(38  E.  C.  L.  R.)  634.  But  if  the  document  be  only  accidentally  connected  with 
it,  no  such  presumption  is  made  in  such  a  case  :  Atkins  v.  Meredith,  4  Dowl. 
65S  ;  Lawrence  v.  Clark,  14  M.  &  W.  250 ;  Byrne  v.  Harvey,  2  M.  &  Rob.  89 ; 
Holt  V.  Miers,  9  Car.  &  P.  (38  E.  C.  L.  R.)  191.  It  is  for  the  judge  to  determine 
whether  the  papers  required  to  be  produced  were  so  necessarily  connected  with 
the  cause  as  to  render  it  probable  that  they  would  be  delivered  to  the  attorney  : 
per  Lord  Tenterden,  in  Vice  v.  Lady  Anson,  M,  &  M.  (22  E.  C.  L.  R.)  97.     Thus 

duced  by  the  defendant's  attorney  himself,  who  must  have  known  that  it  was 
the  principal  paper  wanted  :  Ibid.  Where  the  pleadings  in  the  case  gives  notice 
to  a  party  to  be  prepared  to  produce  a  particular  instrument  at  the  trial,  formal 
notice  is  not  necessary:  Hammond  v.  Hopping,  13  Wend.  505;  Utica  Bank  v. 
Hillard,  5  Cow.  419.  A  paper  produced  on  notice  to  the  adverse  party  must 
be  proved  by  him  who  offers  it  in  like  manner  as  if  he  had  himself  produced  it, 
unless  the  person  producing  it  be  a  party  to  the  instrument  or  claim  a  benefi- 
cial interest  under  it:  Rhoades  v.  *SeZm,  4  Wash,  C.  C.  R.  715;  Williams  v. 
Keyscr,  11  Fla.  234.  When  a  party  calls  for  the  account  of  his  opponent,  and 
on  its  being  produced  reads  it  to  the  jury,  it  may  generally  be  considered  as 
making  it  to  some  extent  evidence  ;  but  when  suit  is  brought  on  what  is  alleged 
to  be  the  balance  of  an  account  which  is  disputed,  or  where  the  defendant 
alleges  that  an  account  which  he  did  not  originally  object  to  from  ignorance  or 
mistake,  is  erroneous,  and  calls  for  it  expressly  to  disprove  some  of  the  items 
and  the  amount  charged  on  each  of  them,  and  gives  evidence  to  this  effect,  the 
f\ict  of  his  calling  for  it  to  disprove  it,  is  not  any  evidence  of  its  correctness  : 
Gracy  v.  Baily,  16  S.  &.  R.  126.  Where  notice  has  been  given  to  a  party  to 
produce  books  or  papers  on  the  trial  of  the  cause,  and  he  is  sworn,  and  states 
that  the  books  or  papers  required  are  not  in  his  possession,  he  cannot  be  ex- 
amined by  the  counsel  generally  as  to  the  merits  or  gist  of  the  cause.  The  case 
does  not  resemble  in  this  respect  that  of  a  bill  of  discovery  in  chancery  :  Wood 
V.  Connell,  2  Whart.  542.  G. 

As  to  notice  to  produce  :  Jefferson  v.  Conway,  5  Ilarring.  16  ;  Cooper  v.  Cran- 
berry, 33  Miss.  117;  Dean  v.  Border,  15  Tex.  298;  Farnsworth  v.  Sharp,  5 
Sneed  615  ;  Cody  v.  Hough,  20  111.  43. 


556  PRIVATE     DOCUMENTS. 

[*556]    reasonable  notice."     A  notice  to  *produce  a  written  instru- 

in  an  action  aijainst  partners,  the  defence  was  that  the  bill  had  been  accepted 
by  one  for  his  private  debt,  with  the  knowledfre  of  the  plaintiff.  Held,  that 
other  bills  accepted  by  that  partner,  and  paid,  were  not  so  connected  with  the 
subject  of  the  trial  as  to  render  a  notice  on  the  attorney  to  produce  them  (too 
late  for  him  to  obtain  them  for  his  client)  sufficient  to  let  in  secondary  evidence 
of  them  :  Afflago  v.  Fourdrinier,  M.  &  M.  (2'2  E.  C.  L.  R.)  334 :  6  Bing.  (19  E. 
C.  L.  11.)  306. 

°  With  respect  to  documents  which  may  be  presumed  to  be  in  England,  it  has 
been  held,  where  the  trial  is  to  take  place  at  the  assizes,  if  the  party  and  his 
attorney,  or  either  of  them,  live  in  another  town,  a  notice  for  the  assizes  should 
in  general  be  served  before  the  commission-day :  Trist  v.  Johnson,  1  M.  &  Rob. 
259.  Upon  an  indictment  for  arson,  when  the  commission-day  was  on  the  Loth, 
notice  was  served  on  the  prisoner  in  gaol  on  the  18th,  and  the  trial  was  on  the 
20th,  the  notice  was  held  to  be  too  late :  R.  v.  Ulicombe,  5  C.  &  P.  (24  E.  C.  L. 
R.)  522.  Notice  to  a  prisoner  to  produce  a  deed  after  the  commencement  of  the 
assizes,  at  which  he  was  tried  for  felony,  was  held  to  be  insufficient :  B.  v.  Ha- 
worth,  York  Lent  Assizes  1830,  cor.  Parke,  J.  Notice  by  the  plaintiff  was  served 
on  Saturday,  in  Essex,  to  produce  a  deed  on  a  trial  at  the  assizes  which  com- 
menced on  the  following  Monday  ;  the  attorney  went  to  London  and  fetched  the 
deed  ;  a  notice  was  served  on  the  Monday  evening  to  produce  another  deed  ;  the 
attorney  offered  to  procure  it,  if  the  plaintiff  would  pay  the  expense ;  no  offer 
of  payment  was  made.  The  trial  was  on  Thursday  ;  it  was  held,  that  the  plain- 
tiff was  not  entitled  to  give  secondary  evidence  of  the  latter  deed  [Doe  v.  Sjntfi/, 
3  B.  &  Ab.  (23  E.  C.  L.  R.)  182) ;  for  the  defendant  was  not  bound  to  permit 
the  deed  to  be  sent  by  coach,  the  plaintiff  refusing  to  pay  for  a  special  messen- 
ger. Service  on  the  attorney  at  the  assize  town  on  Monday  evening  to  procure 
a  book  which  was  both  actually  and  presumably  at  his  residence,  nineteen  miles 
off,  the  cause  being  tried  on  Wednesday,  is  not  sufficient :  Hargist  v.  Fothergill, 

5  C,  &  P.  (24  E.  C.  L.  R.)  303.     So  where  it  was  served  on  the  defendant's 
attorney  at  his  residence,  twenty  miles  from  the  place  of  trial,  at  eight  in  the  . 
evening  before  the  trial,  and  the  defendant  resided  in  the  same  town  as  the 
attorney,  but  was  not  at  home  till  twelve  o'clock  :  Howard  v.  Williams,  9  M. 

6  W,  728.  A.  and  his  attorney  lived,  the  one  fourteen,  and  the  other  twenty 
miles,  from  the  assize  town.  At  noon  on  the  commission-day  the  attorney  was 
served  at  the  assize  town  with  notice  to  produce  a  paper.  The  trial  came  on 
next  morning.  In  fact  the  paper  was  then  at  the  assize  town,  in  the  possession 
of  M.,  a  former  attorney  for  the  defendant,  who  had  a  lien  on  it  as  such  at- 
torney, and  the  fact  that  he  had  it  was  mentioned  in  the  notice  to  produce.  It 
was  held  that  the  secondary  evidence  might  be  received  :  E.  v.  Haiolcins,  2  C. 
&  K.  (61  E.  C.  L.  R.)  823.  In  an  action  on  a  bond  tried  at  the  Flintshire  assizes, 
the  commission-day  was  the  27th  ;  the  cause  was  tried  on  the  29th.  At  10  a.  m., 
on  the  2.Stli,  notice  to  produce  the  bond  was  served  on  defendant's  attorney  at 
Mold,  in  the  defendant's  presence.  The  attorney  resided  in  London.  In  fiict 
the  bon<l  was  in  tlie  possession  of  W.,\i\w  was  the  defendant's  general  attorney, 
and  who  had  undertaken  to  produce  it,  if  bound  to  do  so.  Before  the  assizes 
he  had  sent  the  bond  to  the  defendant's  attorney  in  the  action,  in  London,  for 
inspection  and  admission  under  a  judge's  order,  where  the  plaintiffs  attorney 


NOTICE     TO     PRODUCE.  557 

ment  is  usually  in   writing,  but  it  *may,  it  seems,  be  by    [*557] 

had  copied  it.  At  the  trial  W.  had  the  bond  in  court,  but  objected  to  produce 
it  on  the  ground  of  privilefre,  and  the  objection  was  allowed.  Held,  that  the 
notice  to  produce  was  sufiicient,  and  that  the  copy  was  admissible  :  Lloi/d  v. 
Mostyn,  10  M.  &  W.  478.  The  commission-day  being  on  Thursday,  notice  was 
served  on  the  plaintiflTs  attorney,  who,  as  well  as  the  plaintiff,  lived  in  the  assize 
town,  to  produce  some  bills,  and  the  cause  was  tried  on  the  Monday.  This  was 
held  sufficient:  Firkin  v.  Edwards,  9  Car.  &  P.  (38  E.  C.  L.  R.)  478. 

With  respect  to  town  causes,  service  of  notice  upon  the  wife  of  the  attorney 
of  the  defendant,  late  in  the  evening  of  the  night  before  the  trial  in  London, 
was  held  to  be  insufficient :  Doe  v.  Guy,  1  Stark.  C.  (2  E.  C.  L.  R.)  283.  So  was 
the  service  at  seven  in  the  evening  of  the  day  before  the  trial,  at  the  office  of  the 
attorney,  who  had  then  left  his  office :  Sims  v.  Kitchen,  5  Esp.  C.  46  ;  s.  p. 
Atkinson  v.  Carter,  2  Ch.  403  ;  Holt  v.  Miers,  9  Car.  &  P.  (38  E.  C.  L.R.)  191. 
But  in  Leaf  v.  Butt,  1  Car.  &  M.  (41  E.  C.  L.  R.)  451,  a  notice  served  on  the 
defendant's  attorney  in  the  Strand,  at  seven  o'clock  the  evening  before  the  trial, 
to  produce  a  letter  applying  for  payment  of  the  debt,  addressed  to  the  defend- 
ant, who  lived  in  the  Edgeware  Road,  was  held  sufficient  by  Alderson,  B., 
after  consulting  the  other  judges;  and  so  in  Meyrickv.  Woods,  Ibid.  452,  a 
notice  to  produce  a  letter  demanding  compensation,  served  on  the  defendant  in 
Duke  street,  Manchester  Square,  and  his  attorney  in  Seymour  street,  Bryanston 
Square,  at  half-past  six  on  the  evening  before  the  trial,  was  held  by  the  same 
learned  judge  sufficient.  And  even  though  the  case  had  been  part  heard  and 
adjourned  till  the  next  day  at  10  o'clock  a.  m.,  a  notice  served  on  the  plaintiff's 
attorney,  before  nine  o'clock  in  the  evening,  to  produce  a  letter  from  the  defend- 
ant to  the  plaintiff,  was  held  to  be  in  time  :  Sturm  v.  Jaffier,  2  Car.  &  K.  (61 
E.  C.  L.  R.)  442.  So,  in  Gibbons  v.  Powell,  9  Car.  &  P.' (38  E.  C.  L.  R.)  634, 
a  notice  served  on  defendant's  attorney  at  half-past  seven  the  night  before  to 
produce  the  writ.  Where,  however,  under  the  circumstances,  it  cannot  be  pre- 
sumed that  the  document  (e.  g.  a  tradesman's  book)  is  in  the  possession  of  the 
attorney,  notice  to  the  attorney  on  the  preceding  evening  is  insufficient,  although 
the  client  reside  in  London  :  Atkins  v.  Meredith,  4  Dowl.  P.  C.  639.  So,  in  an 
action  on  a  bill  of  exchange,  to  which  there  was  a  plea  of  fraud  and  covin, 
notice  by  the  defendant  to  produce  the  bill,  left  in  the  letter-bos  of  the  office  of 
the  plaintiff's  attorney  at  half-past  eight  in  the  evening,  before  the  cause  was 
tried,  the  office  and  the  plaintiff  being  both  in  London,  was  held  to  be  too  late  : 
Lawrence  v.  Clarke,  14  Mi  &  W.  250.  It  was  also  held  that  the  plaintiff  was 
not  bound  to  pi-oduce  it  without  notice  :  Ibid.  So,  where  notice  was  given  to 
produce  a  letter  not  obviously  connected  with  the  cause  ;  and  the  service  was 
too  late  to  enable  the  attornej'  to  communicate  with  his  client,  secondary  evi- 
dence was  rejected  :  Byrne  v.  Harvey,  2  M.  &  Rob.  89.  If  the  document  be 
abroad,  notice  should  be  given  in  sufficient  time  to  enable  the  party  to  procure 
it ;  thus,  a  notice  served  on  a  partner  in  a  firm  carrying  on  business  in  India, 
who  had  no  place  of  business  in  London,  to  produce  a  letter  relating  to  the 
partnership  business,  served  in  London  on  3d  February,  the  trial  being  at  the 
Spring  Assizes,  was  held  insufficient  to  entitle  a  party  to  produce  secondary 
evidence  :  Ehrensperger  v.  Anderson,  3  Ex.  148.  But  in  Drabble  v.  Donner, 
Ry.  &  M.  (21  E.  C.  L.  R.)  47,  a  notice  to  produce  letters  written  to  the  defend- 


558  PRIVATE     DOCUMENTS. 

r*5581  P^^'*^^'''  ^"^  ^^^^  '^^  maybe  proved  *bj  any  witness  who 
heard  the  notice  given/  The  usual  course  is,  as  well  in  the 
case  of  notices  to  produce  documents  upon  the  trial,  as  in  giving 
notice  to  quit,  or  notice  of  the  dishonor  of  a  bill  of  exchange,  to 
make  out  duplicate  notices,  and  the  witness  who  serves  one  compares 
them  with  each  other,  and  upon  the  trial  proves  their  correspondence, 
and  the  delivery  of  one  of  them  to  the  attorney  of  the  opposite  party.'' 
It  is  a  general  rule  that  proof  of  notice  to  produce  a  notice  is  not 
requisite;  if  it  were,  the  necessity  would  extend  in  infinitum,  as 
each  additional  notice  to  produce  the  preceding  would  require  the 
same  proof.''  But  the  case  is  different,  where  the  notice  has  been 
given  to  a  third  person,  and  would  not  therefore  be  in  the  possession 
r*5591  °^  ^^^  ^party,**  or  where  the  notice  has  been  given  to  the 
party,  but  the  nature  of  the  issue  is  not  such  that  the  de- 
fendant must  know  that  the  plaintiff  will  give  secondary  evidence, 
unless  the  defendant  produces  it.° 

ant  (a  foreigner)  ten  years  before,  at  his  residence  abroad,  served  on  the  10th, 
for  the  trial  on  the  14th,  was  held  sufficient;  the  defendant  having  come  to  Eng- 
land eight  months  before,  where  he  had  remained  ever  since.  So  in  Sturge  v. 
Buchanan,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  598,  a  notice  four  days  before  the  trial 
to  produce  letters  written  by  the  defendant  to  his  partner  in  Australia,  was  held 
good,  long-pending  litigation  between  the  parties  having  rendered  it  probable 
that  they  must  have  been  transmitted  to  this  country.  A  statement,  however, 
by  the  party  served,  that  the  paper  is  not  in  existence,  does  away  with  all 
objection  as  to  insufficient  notice  :  Foster  v.  Pointer,  9  Car.  &  P.  (38  E.  C.  L.  R.) 
718. 

^  Smith  V.  Young,  1  Camp.  440.  If  both  a  written  and  oral  notice  have  been 
given,  proof  of  either  will  suffice  :  Ibid. 

y  Sturtees  v.  Hubbard,  4  Esp.  C.  203. 

==  Jory  V.  Orchard,  2  B.  &  P.  41.  See  Vol.  II.,  tit.  Notice.  Where  a  great 
number  of  impressions  are  printed  at  the  same  time,  they  are  in  the  nature  of 
duplicate  originals.  See  li.  v.  Watson,  2  Stark.  C.  (3  E.  C.  L.  R.)  129  ;  where 
it  was  held  that  a  number  of  copies  of  a  placard  having  been  printed  by  order 
of  the  prisoner,  who  had  taken  away  twenty-five  of  them  from  the  printers,  one 
of  the  remainder  might  be  read  without  giving  notice  to  the  prisoner  to  produce 
the  twenty-five.     And  see  R.  v.  Pearce,  Peake's  C.  75. 

»  Kine  v.  Beaumont,  3  B.  &  B.  (7  E.  C.  L.  R.)  288;  Colling  v.  Treweek,  6  B. 
&  C.  (13  E.  C.  L.  R.)  398  ;  Swaine  v.  Leioes,  2  C,  M.  &  R.  261  ;  Doe  dem.  Flem- 
ing v.  Somerton,  7  Q.  B.  (53  E.  C.  L.  R.)  58.     See  Vol.  II.,  tit.  Notice. 

"  Grove  v.  Ware,  2  Stark.  C.  (3  E.  C.  L.  R.)  714  ;  Robinson  v.  Brown,  3  C.  B. 
(54  E.  C.  L.  R.)  754. 

"  Ibid. ;  Lanauze  v.  Palmer,  M.  &  M.  (22  E.  C.  L.  R.)  31.  In  this  case  the 
plaintiff  in  an  action  on  a  bill  sought  to  give  evidence  of  notices  of  dishonor  of 
other  bills,  sent  to  the  defendant  in  order  to  show  he  was  aware  of  their  ex- 
istence, and  that  the  endorsement  of  the  bill  in  question,  which  was  similarly 
endorsed,  was  not  u  forgery. 


NOTICE    TO     PRODUCE.  559 

The  notice  will  be  insufficient  if  it  be  entitled  in  a  Avrono;  cause. 
In  an  action  by  the  plaintiffs  A.  and  B.,  assignees  of  C.  (a  bank- 
rupt) V.  U.,  a  notice  to  produce  a  document  was  entitled  A.  and  B. 
assignees  of  C.  and  D.  v.  £.,  and  this  was  held  to  be  insufficient, 
although  A.  and  B.  were  in  fact  the  assifirnees  of  C.  and  I),  under  a 
joint  commission.'^  But  if,  though  inaccurate,  it  could  not  have  been 
misunderstood,  it  will  be  sufficient.'  The  notice  should  also  afford 
sufficient  information  as  to  what  is  really  required,  and  not  be  too 
vague  and  "jencral.*^ 

*  Where  a  document  is  produced  in  consequence  of  notice,  r*r:/:>A-] 
and  part  is  read,  the  party  who  produces  it  is,  in  general,  en- 

^  Harvey  and  others  v.  Morgan,  2  Stark.  C.  (3  E.  C.  L.  R.)  17  ;  cor.  Lord 
Ellenborough  ;  and  afterwards  by  the  Court  of  King's  Bench,  on  motion  for  a 
new  trial,  on  the  ground  that  the  notice  was  sufficient,  and  that  secondary  evi- 
dence ought  to  have  been  admitted. 

^  Bittleston  v.  Cooper,  14  M.  &  AV.  399 ;  Lawrence  v.  Clarke,  14  M.  &  W.  250, 
where  it  was  entitled  in  the  wrong  court. 

^  In  an  action  for  work  and  labor  done  as  a  singer,  notice  had  been  given  to 
the  defendant  to  produce  all  letters,  papers,  books,  receipts,  vouchers,  memo- 
randums, and  all  other  documents  written  by  the  plaintifi'  to  the  defendant,  or 
by  the  defendant  to  the  plaintiff,  or  otherwise  ;  and  it  was  held  to  be  sufficient 
to  Avarrant  parol  evidence  of  a  memorandum,  signed  by  the  defendant  and  de- 
livered to  a  witness,  and  afterwards  re-delivered  to  the  defendant,  stating  the 
terms  of  engagement :  Jones  v.  Hilton,  Lancaster  Spring  Ass.  1825,  cor,  Holroyd, 
J,  Notice  to  produce  "letters  and  copies  of  letters,  also  all  books  relating  to 
this  cause,"  was  held  to  be  too  general,  and  insufficient  to  let  in  secondary  evi- 
dence of  the  contents  of  letters:  Jones  v.  Edwards,  1  M'Clel.  &  Y.  139.  So  a 
notice  to  produce  ''all  letters,  papers  and  documents  touching  and  concerning 
the  bill  of  exchange  mentioned  in  the  declaration,"  is  too  general,  not  pointing 
out  the  particular  letter  required:  France  v.  Lucy,  R.  &  M.  (21  E.  C.  L.  R.)  341. 
But  a  general  notice  to  produce  all  letters  written  by  the  said  plaintiff'  to  the 
said  defendant  relating  to  the  matter  in  dispute,  was  held  sufficient  to  let  in 
secondary  evidence  of  a  particular  letter,  although  the  date  was  not  specified, 
because  the  notice  did  specify  the  names  of  the  parties  by  and  to  whom  the  let- 
ters were  addressed :  Jacob  v.  Lee,  2  M.  &  Rob.  33.  Notice  served  by  the  de- 
fendant on  the  plaintiff  to  produce  "all  letters  written  to  and  received  by  you 
between  the  years  1837  and  1841  from  the  defendant,  or  any  person  on  his 
behalf,"  was  held  sufficient  without  specifying  the  dates  of  particular  letters: 
Morris  v.  Hannen,  Car.  &  M.  (41  E.  C.  L.  R.)  29;  Morris  v.  Hauser,  2  M.  & 
Rob.  392,  s.  c.  In  Rogers  v.  distance,  2  M.  &  Rob.  179,  where  a  number  of 
small  accounts  of  the  work  had  been  delivered  from  time  to  time,  the  court  held 
that  a  notice  to  produce  "all  books,  extracts,  letters,  accounts  and  copies  of 
letters  and  accounts,  papers  and  writings,  relating  to  the  matters  in  question  in 
the  cause,"  was  sufficient  to  let  in  secondary  evidence  of  one  of  the  accounts, 
observing  that  much  must  depend  on  the  particular  circumstances  of  each  case  ; 
and  the  question  was  whether  the  party  must  have  been  aware  that  this  account 
was  required. 


560  PRIVATE     DOCUxMENTS. 

titled  to  have  the  whole  read  ;^  but  where  notice  was  given  to  produce 
a  letter  which  expressed  that  it  covered  several  enclosures,  but  without 
referring  to  them  particularly,  it  was  held  that  the  party  producing 
the  letter  was  not  entitled  to  have  the  enclosures  read.'' 

It  is  to  be  observed,  that  notice  to  produce  a  document  in  the 
hands  of  an  adversary  does  not  make  it  evidence  for  hini,  unless  the 
instrument  be  called  for,'  although  the  omission  to  call  for  it  after 
r^rp-,-1  notice  may  raise  a  presumption  unfavorable  to  the  party 
who  gave  the  notice.''  *But  if  the  party  giving  notice  call 
for  it,  and  inspect  it,  he  makes  it  evidence,  although  he  does  not 
read  it.' 

It  is  also  a  general  rule  that  a  defendant,  although  he  has  given 
notice  to  his  adversary  to  produce  a  particular  document,  cannot  in- 
sist upon  the  production,  or  give  parol  evidence  of  the  contents,  until 
the  plaintiff's  case  has  been  closed."" 

The  reason  for  giving  notice,  and  the  necessity  for  giving  it,  cease 
when  from  the  very  nature  of  the  suit  or  prosecution,  tlie  party  must 
know  that  he  is  charged  with  the  possession  of  the  instrument.  Con- 
sequently, in  an  action  of  trover  for  a  bond  or  note,  parol  evidence 
of  the  instrument  may  be  given,  although  no  previous  notice  to  pro- 

8  Infra,  pp.  579,  580.     But  see  ante,  p.  235. 

^  Johnson  v.  Gilson,  4  Esp.  C.  21  ;  Stnrge  v.  Buchanan,  10  Ad.  &  E.  (37  E.  C. 
L.  R.)  598.  And  where  a  shop-book  was  produced,  in  pursuance  of  notice,  it 
was  held  that  the  party  who  produced  it  was  not  entitled  to  read  other  entries 
in  the  book,  which  had  no  reference  to  those  which  had  been  read  by  the  adver- 
sary:  Whitfield  V.  Aland,  2  Car.  &  K.  (61  E.  C.  L.  R.)  1015. 

'  Sayer  v.  Kitchen,  1  Esp.  C.  210.  Nor  even  although  called  for,  unless  it  be 
inspected  or  otherwise  used.     See  infra. 

*  Per  Lord  Kenyon,  Ibid.  In  general,  however,  there  is  little  to  presume  in 
such  a  case  ;  it  is  usual  in  practice  to  give  a  general  notice  to  produce  books,  &c., 
but  it  would  be  impolitic  to  call  for  them,  unless  something  were  known  as  to 
their  contents. 

'  Wharam  v.  Routkdfje,  5  Esp.  C.  235 ;  Calvert  v.  Flower,  7  C.  &  P.  (32  E.  C. 
L.  R.)  386.     But  see  Wilson  v.  Bowie,  1  C.  &  P.  (12  E.  C.  L.  R.)  8. 

^  Graham  v.  Dyster,  2  Stark.  C.  (3  E.  C.  L.  R.)  23  ;  Sideways  v.  Dyson,  Ibid. 
49.  On  the  cross-examination  of  one  of  the  plaintiff's  witnesses,  the  defendant's 
counsel  refjuired  the  production  of  the  plaintiff's  books,  notice  having  been 
given  for  that  purpose.  The  plaintiff  refused  to  produce  them  in  that  .stage  of 
the  liusincss,  before  the  defendant  liad  gone  into  his  case.  The  defendant's 
counsel  then  proposed  to  give  parol  evidence  of  the  entries ;  but  Lord  Ellen- 
borough  said  that,  in  strictness,  the  evidence  could  not  be  anticipated,  although 
it  was  rigorous  to  insist  upon  the  rule,  and  a  close  adherence  to  it  might  be 
productive  of  inconvenience. 


NOTICE    TO     PRODUCE  —  WHEN     UNNECESSARY.         562 

duce  it  be  proved  ;"-  and  in  a  prosecution  for  stealing  *sucli  r:^r(*c)-] 
an  instrument,  tbe  same  rule  applies."  So  also  in  trials  for 
treason,  where  the  prisoner  has  been  proved  to  be  in  possession  of 
the  original  document  containing  the  treasonable  matter.^  In  an 
action  for  breach  of  promise  of  marriage,  it  appeared  that  a  witness 
who  had  been  served  with  a  subpoena  duces  tecum  lo  produce  a  letter 
written  by  the  plaintiff  to  the  witness,  had,  since  the  commencement 
of  the  action,  delivered  it  to  the  plaintiff;  and  although  no  notice 
had  been  given  to  produce  it.  Lord  Ellenborough  admitted  evidence 
of  the  contents,  since  the  document  belonged  to  the  witness,  and  had 
been  subtracted  in  fraud  of  the  subpoena  ;  it  was  therefore  admissi- 
ble as  in  odium  spoliatoris.'^  Where  proof  had  been  given  that  a 
conspirator  in  a   case   of  high   treason,  had   procured   the  possession 

"  Scott  V.  Jones,  4  Taunt.  865;  Hoio  v.  Hall,  14  East  274;  Jollei/\.  Taylor,  1 
Camp.  143  ;  Butcher  v.  Jarrait,  3  Bos.  &  Pull.  143  ;  Wood  v.  Strickland,  2  Mer. 
461  ;  Whitehead  v.  Scott,  1  M.  &  Rob.  2 ;  Colling  v.  Treweek,  6  B.  &  C.  (13  E. 
C.  L.  R.)  398.  But  in  an  action  on  a  check,  with  a  plea  that  it  was  won  by 
playinir  at  an  unhiwful  game,  the  defendant  cannot  give  secondary  evidence  of 
it  without  notice  to  produce  it:  Bead  v.  Gamble,  10  Ad.  &  E.  (37  E.  C.  L.  R.) 
597.  A  plea  to  an  action  by  the  drawer  of  a  bill  against  the  acceptor,  that  he 
accepted  in  part  payment  of  a  debt  owing  by  him  to  the  plaintiff  to  induce  him 
to  prove  his  debt  under  a  fiat  against  the  defendant,  which  acceptance  in  part 
payment  of  such  debt  is  denied  in  the  replication,  does  not  give  the  plaintiff 
such  notice  that  the  bill  will  be  called  for  as  to  dispense  with  notice  to  produce : 
Goodered  v.  Armour,  3  Q.  B.  (43  E.  C.  L.  R.)  956.  Neither  does  a  plea  that 
the  defendant's  acceptance  was  obtained  by  fraud :  Laicrencev.  Clarke,  14  M. 
&  W.  25U.  Where  usury  is  stated  to  have  been  committed  in  discounting  the 
bill  upon  which  the  action  is  brought,  and  another  bill  in  one  undivided  trans- 
action, no  parol  evidence  is  admissible  as  to  the  contents  of  the  latter,  unless 
notice  has  been  given  to  produce  it:  Hattam  v.  Withers,  1  Esp.  C.  259;  coram 
Loi-d  Kenyon,  C.  J.,  1795.  In  equity  each  party  knows  previously  what 
evidence  has  been  given,  and  therefore  there  is  not  the  same  necessity  for 
notice. 

°  li.  v.  Aickles,  1  Leach  C.  391.  So  on  an  indictment  for  forging  a  bill  of 
exchange,  which  the  prisoner  had  swallowed  :  R.  v.  Sprague,  cor.  Buller,  J.,  on 
the  Northern  circuit,  cited  by  Lord  Ellenborough  in  How  v.  Hall,  14  East  274  ; 
Butler's  case,  13  How.  St.  Tr.  1250. 

p  Francias  case,  15  How.  St.  Tr.  941.  In  R.  v.  Moors,  6  East  419,  n., 
upon  an  indictment  for  administering  unlawful  oaths,  a  witness  swore  to  the 
terms  of  one  spoken  by  the  prisoner  whilst  he  held  a  paper  in  his  hand,  and  it 
was  held  that  notice  to  produce  the  paper  was  unnecessary.  And  so  it  is 
generally,  without  resorting  to  the  principle  now  under  consideration,  where 
evidence  is  given  of  what  the  party  has  6aM.  And  see  R.v.  Layer,  16  How. 
St.  Tr.  220;  R.  v.  De  la  Motie,  East  P.  C.  124.  The  letters  in  the  latter  case 
had  been  opened  at  the  post-office. 

1  Leeds  v.  Cook,  4  Esp,  C.  256 ;  Doe  v.  Ries,  7  Bing.  (20  E.  C.  L.  R.)  724. 


562  PRIVATE     DOCUMENTS. 

of  certain  printed  placards,  it  was  held  that  they  were  duplicate 
originals,  and  that  one  might  be  read  in  evidence  without  notice  to 
f-sjcr^o-i  produce  the  *original.''  Where  a  party  at  a  public  meeting 
delivered  to  a  person  a  written  paper,  as  a  copy  of  the  re- 
solutions about  to  be  read,  and  which  corresponded  with  the  resolu- 
tions so  read,  it  was  held  to  be  good  evidence  to  prove  the  resolu- 
tions, without  previous  notice  to  produce  the  paper  from  which  the 
resolutions  were  read.''  Notice  is  in  general  unnecessary,  where  a 
duplicate  original  can  be  proved.'  Proof  that  the  adversary  or  his 
attorney  has  the  deed  or  other  instrument  in  court,  was  formerly 
held  not  to  supersede  the  necessity  of  notice;  for  the  object  of  the 
notice,  it  was  said,  was  not  merely  to  enable  the  party  to  bring  the 
instrument,  but  also  to  provide  such  evidence  as  the  exigency  of  the 
case  might  require  to  support  or  impeach  the  instrument."     But  in 

■•  E.  V.  Watson,  2  Stark.  C.  (3  E.  C.  L.  R.)  129.  A  copy  of  a  letter  taken  by 
a  copying  machine  is  not  evidence  without  notice  to  produce  the  original :  Kodin 
V.  Murray,  3  Camp.  228  ;  Holland  v.  Reeves,  7  C.  &  Pi  (32  E.  C.  L.  R.)  36. 
Otherwise  with  notice,  the  witness  producing  the  copy  stating  that  he  worked 
the  machine,  although  he  had  not  compared  it  with  the  original :  Simpson  v. 
Thoreton,  2  M.  &  Rob.  433. 

■  B.  V.  Hunt,  3  B.  &  Aid.  (5  E.G.  L.  R.)  572. 

*  See  Vol.  II.,  tit.  Notice  ;  Colling  v.  Treiveek,  6  B.  &  C.  (13  E.  C.  L.  R.)  398; 
per  Bayley,  J. ;  PMlipson  v.  Chase,  2  Camp.  \\Q,  per  Lord  Ellenborough.  The 
copy  of  a  bill  delivered  by  an  attorney  to  the  client  is  evidence,  without  notice 
to  produce  the  original :  Anderson  v.  May,  3  Esp.  C.  167.  And  the  Court  of 
C.  P.  refused  a  rule  for  a  new  trial :  2  Bos.  &  Pul.  237  ;  Colling  v.  Treweek,  6 
B.  &  C.  (13  E.  C.  L.  R.)  394.  But  where  no  such  part  has  been  kept,  and  no 
notice  has  been  given,  the  plaintiff  cannot  state  the  items  of  the  bill  from  his 
book  :  Philipson  v.  Chase,  2  Camp.  110. 

"  See  Doe  v.  Grey,  1  Stark.  C.  (2  E.  C.  L.  R.)  283  ;  and  Roe  v.  Harvey,  4  Burr. 
2484.  In  debt  for  i-ent  by  the  assignee  of  the  lessor  against  the  assignee  of  the 
lessee,  the  plaintiff's  attorney  being  called  to  prove  the  execution  of  the  deed, 
having  on  cross-examination  admitted  that,  after  the  execution,  some  other  deed 
had  been  executed  between  the  original  parties,  but  which  he  declined  producing, 
though  in  court,  the  court  expressed  their  opinion  that  there  having  been  no 
notice  to  produce,  parol  evidence  could  not  be  given  of  the  contents  of  the  deed  : 
Bate  V.  Kinsey,  1  C,  M.  &  R.  38.  So,  it  has  been  said,  if  the  document  is  shown 
to  have  been  delivered  to  the  adversary,  its  contents  cannot  be  proved  without 
notice  to  produce,  upon  showing  it  to  have  been  lost  or  destroyed.  Thus,  in 
ejectment,  the  defendant  having  admitted  the  title  as  heir  and  proved  a  will, 
duly  executed,  held  that  the  plaintiff,  not  having  given  notice  to  produce,  could 
not  ask  a  witness  whether  the  deceased  had  not  a  fortnight  after,  in  the  presence 
of  himself  and  otiiers,  signed  another  paper  and  declared  it  to  be  his  last  will  ; 
and  such  latter  paper  having  been  traced  to  the  possession  of  the  defendant,  the 
court  saiil  that  secondary  evidence  could  not  be  given  of  it  without  notice  to  pro- 


PROOF    OF  —  FROM     ADVERSARY'S     POSSESSION.        564 

a  recent  case  it   was   *held  by  Pollock,  C.  B.,  after  consult-    r*rpi-| 
ing  the  judges  in  the  Exchequer  Chamber,  that  the  attorney 
of  the  adversary  having  the  instrument  in  court,  and  refusing  to  pro- 
duce  it,  secondary  evidence   might  be  given   of  it,  though  no  notice 
to  produce  had  been  served.""^ 

A  counterpart,  which  is  not  a  duplicate  original,  having  been 
executed  by  one  party  only,  is  admissible  against  the  party  who 
executes  it,  to  prove  the  execution  of  the  other  part  which  it  recites, 
although  no  notice  has  been  given  to  produce  the  original/     But  as 

duce,  even  though  it  was  proved  to  have  been  lost  or  destroyed :  Doe  v.  Morris, 
3  Ad.  &  E.  (30  E.  C.  L.  R.)  46. 

"°  Dwyer  v.  Collins,  Ex.  Sitt.  after  H.  T.  1852.  Action  on  bill,  plea,  given  for 
a  racing  bet.  No  notice  had  been  given  to  produce  the  bill,  but  the  plaintiff's 
attorney  was  in  court,  and  being  called  by  defendant,  refused  to  produce  it : 
whereupon  Pollock,  C.  B.,  held  that  the  attorney  was  compellable  to  state  its 
contents. 

"  Burleigh  v.  Stibhs,  5  T.  R.  465.  The  declaration  alleged  that  A.  B.  put  him- 
self apprentice  to  the  defendant  by  a  certain  indenture  executed,  &c.;  and  it  was 

'  Notice  to  produce  is  not  necessary  when  the  defendant  has  notice  that  the 
plaintiff  means  to  charge  him  with  the  possession  of  the  paper,  as  in  trover  for 
a  bond :  where  the  party  had  fraudulently  obtained  possession  of  a  written  in- 
strument belonging  to  a  third  person  ;  and  perhaps  when  it  appears  that  the 
writing  is  in  court  and  the  party  refuses  to  produce  it:  Pickeriny  v.  Myers,  2 
Bail.  113;  Gray  v.  Kernahan,  2  Rep.  Const.  Ct.  65;  Comm.  v.  Messinger,  1 
Binn.  273 ;  Milliken  v.  Barr,  7  Barr  23  ;  Brown  v.  Ishell,  11  Ala.  1009  ;  Edivards 
\.  Bonneau,  1  Sandf.  S.  Ct.  619;  Nealley  v.  Greenough,  5  Fost.  325;  Eosey. 
Leiois,  10  Mich.  483.  A  notice  given  at  the  bar  during  the  progress  of  a  trial, 
to  produce  a  paper,  is  not  sufficient  unless  it  appears  satisfactorily  that  the  paper 
is  in  court  at  the  time,  and  in  possession  of  the  party  upon  whom  demand  is 
made,  or  if  elsewhere  that  it  would  be  easy  of  access  :  Atwell  v.  Miller,  6  Md.  10. 
If  two  letters  are  written  at  the  same  time  to  the  same  person,  one  being  the 
exact  counterpart  of  the  other,  one  being  sent  to  the  person  addressed  and  the 
other  retained  by  the  writer,  each  is  an  original,  and  the  one  retained  may  be 
put  in  evidence  by  the  party  who  retained  it,  without  notice  to  the  opposite 
party  to  produce  the  other  :  Hubbard  v.  Russell,  24  Barb.  404.  If  the  action  is 
on  a  written  contract  in  possession  of  the  defendant,  the  plaintiff  may  give  evi- 
dence of  its  contents  without  any  notice  to  produce  it :  Dana  v.  Conant,  30  Vt. 
246;  Hamilton  v.  Bice,  15  Tex.  382;  State  v.  Mayberry,  48  Me.  218.  But  see 
Carland  v.  Cunningham,  1  Wright  228.  Notice  to  produce  a  notice  is  unneces- 
sary:  every  written  notice  should  be  proved  by  a  duplicate  original  :  Morrow  v. 
Cumm.,  12  Wright  305.  If  the  paper  which  the  opposite  party  is  called  upon  to 
produce  is  shown  to  be  in  a  place  so  remote  from  that  of  the  trial,  that  it  can- 
not be  produced  between  the  time  of  the  giving  of  the  notice  and  that  of  the 
conclusion  of  the  evidence,  the  notice  will  be  held  insufficient  to  justify  the  ad- 
mission of  secondary  evidence :  Morrison  v.  Whitsides,  17  Md.  452 ;  Barkery. 
Barker,  14  Wis.  131. 
34 


564  PRIVATE     DOCUMENTS. 

against  a  third  person,  unless  he  claims  in  privity,"^  a  counterpart 
cannot  be  read  in  evidence  without  accounting  for  the  want  of  the 
original,  or  proving  it  to  be  in  the  possession  of  the  party,  and  that 
he  has  had  notice  to  produce  it." 

j-^P/ir-.  *After  proof  of  notice,  the  adversary  either  produces  the 
""  instrument  or  he  does  not.     If  he  does  produce  it,  the  exe- 

cution must  be  proved  in  the  usual  way,  by  means  of  the  attesting 
witness.  This  is  now  settled,^  although  it  was  formerly  held,  that 
where  the  deed  or  other  instrument  came  out  of  the  adversary's 
possession,  no  proof  of  execution  was  requisite.^'  In  Gordon  v.  Sec- 
retan^^  where  the  plaintiff  in  an  action  on  a  policy  of  insurance  pro- 
held  that  this  was  proved  by  the  proof  of  that  part  of  the  indenture  executed  by 
the  defendant,  and  in  which  it  was  recited  that^.  B.  had  bound  himself  appren- 
tice to  him.  So,  in  ejectment,  on  a  clause  of  re-entry  for  a  forfeiture  for  non- 
payment of  rent,  against  an  assignee  of  the  lease,  proof  of  the  counterpart,  exe- 
cuted by  the  original  tenant,  is  sufficient  evidence  of  his  holding  on  the  same 
terms :  Roe  v.  Davis,  7  East  363  ;  Mayor,  &c.,  of  Carlisle  v.  Blamire,  8  East 
487 ;  and  see  Pearse  v.  Morrice,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  84. 

^  7  East  363 ;  8  East  487 ;  and  see  3  Q.  B.  (43  E.  C.  L.  R.)  622. 

^  Anon.,  Salk.  287  ;  Anon.,  6  Mod.  225  ;  per  Grose,  J.,  R.  v.  Middlezoy,  2  T.  R. 
41.  But  in  order  to  prove  that  the  ancestor  of  the  lessor  of  the  plaintiff  had  been 
seised  of  the  land  in  question,  a  counterpart  of  a  lease  thereof  purporting  to  be 
made  by  that  ancestor,  and  appearing  to  be  executed  by  a  party  therein  named 
as  lessee,  and  found  in  the  muniment  room  of  the  lessor  of  the  plaintiff,  was 
held  admissible,  although  there  was  no  privity  between  such  apparent  lessee 
and  the  defendant:  Doe  dem.  Egremont  v.  Pulman,  3  Q.  B.  (43  E.  C.  L.  R.)  62.'. : 
Garrett  v.  Lister,  1  Levinz  25. 

y  Gordon  v.  Scretan,  8  East  548.  An  endorsement  on  a  deed  of  feoffment  of 
livery  of  seisin,  as  having  been  made  by  a  deceased  person  and  attested,  was 
produced  by  the  defendant  in  ejectment  for  the  land.  It  was  held  inadmissible, 
without  calling  the  attesting  witness,  as  the  defendant  did  not  claim  under  it: 
Doe  V.  Marquis  of  Cleceland,  9  B.  &  C.  (17  E.  C.  L.  R.)  869.  Where  ship's 
articles  came  out  of  the  hands  of  the  adverse  party  upon  notice,  the  subscribing 
witness  must  be  called  ;  but  in  the  case  of  actions  by  seamen,  their  contents  may 
be  proved  without  producing  them,  or  notice  to  produce  them  :  13  &  14  Vict.  c. 
93,  s.  52 ;  Johnson  v.  Lewellen,  6  Esp.  C.  101.  The  general  rule  extends  to 
agreements  not  under  seal:  Whetherston  v.  Edgingivn,  2  Campb.  94;  and  see 
Cooke  V.  Stocks,  Tidd,  9th  ed.  487  ;  Bateman  v.  Phillips,  4  Taunt.  157  ;  Taylor 
v.  Osborne,  cited  4  Taunt.  159-61.  162.  The  object  of  the  party  who  means  to 
use  the  instrument  is  not  material :  Carr  v.  Burdiss,  1  C.  M.  &  R.  782. 

'  R.  V.  Middlezoy,  2  T.  R.  41  ;  Doxon  v.  Haigh,  4  Esp.  C.  109. 

»  8  East  584. 


*  A  paper  produced,  on  notice,  by  the  adverse  party,  must  be  proved  by  him 
who  offers  it,  in  like  manner  as  if  he  had  himself  produced  it,  unless  the  party 
producing  it  be  a  party  to  the  instrument  or  claim  a  beneficial  interest  under 
t:  Rhoadea  v.  Selin,  4  Wash.  C.  C.  715. 


PROOFS     OF  —  FROM     ADVERSARY'S    POSSESSION.       565 

(luced  an  agreement  between  himself  and  a  stranger  to  the  defendant, 
in  pursuance  of  notice  from  the  defendant,  in  order  to  show  that  the 
plaintiflF  had  no  interest  in  the  subject-matter  insured,  it  was  held 
that  the  defendant  was  bound  to  prove  the  execution  of  the  agree- 
ment by  means  of  the  subscribing  witness.  In  the  subsequent  case 
of  Pearce  v.  Hooper,^  it  was  held  that  if  the  party  producing  *a  r*np£«-| 
deed  upon  notice  was  possessed  of  a  beneficial  interest  under  it, 
proof  of  the  execution  of  the  deed  by  his  adversary  was  not  necessary. 
In  that  case  the  defendant  in  trespass  called  for  the  deed  which  con- 

^  3  Taunt.  60.  In  an  action  to  recover  a  deposit  for  the  purchasing  of  an 
estate,  the  plaintiff  need  not  prove  the  contract  of  sale  produced  by  the  vendor: 
Bradshaw  v.  Bennett,  1  M.  &  Rob.  143.  So  where  the  defendants  claimed  title 
to  the  goods  for  the  conversion  of  which  the  action  was  brought,  under  a  deed 
of  assignment,  and  produced  it  at  the  trial  under  notice,  it  was  held  that  it  might 
be  read  against  them  without  proof  of  execution,  although  the  plaintiffs  denied 
its  validity  on  the  ground  of  fraud :  Carr  v.  Burdiss,  1  C,  M.  &  R.  785.  So 
where  the  defandants,  assignees  of  a  bankrupt,  produced,  under  a  notice  from 
the  plaintiff  (in  an  action  for  use  and  occupation)  the  deed  of  assignment  of  the 
bankrupt's  effects  ;  it  was  held,  that  the  deed  was  admissible  in  evidence,  though 
not  proved  by  the  attesting  witness,  it  having  been  shown  that  the  defendants 
occupied  under  the  deed :  Orr  v.  Morrice,  3  B.  &  B.  (7  E.  C.  L.  R.)  139.  In  an 
action  for  work  and  labor,  the  defendant  produced  an  agreement,  signed  by  the 
plaintiff  only,  and  attested,  and  Bayley,  J.,  held,  that  proof  by  the  attesting 
witness  was  unnecessary  :  Mann  v.  Musgrave,  York  Spring  Ass.  1828.  So  in  an 
action  by  a  servant  against  his  master  for  not  employing  him  every  working 
day,  and  paying  him  during  a  year  which  had  not  expired,  with  a  plea  of  non 
assumpsit,  the  plaintiff  produced  upon  notice  the  agreement  between  him  and 
defendant ;  and  Cresswell,  J.,  held  that  the  plaintiff  claimed  an  interest  under 
it,  and  that  the  attesting  witness  need  not  be  called  :  Bell  v.  CJiai/tor,  I  C.  &  K. 
(47  E.  C.  L.  R.)  162.  So,  where  the  plaintiff  agreed  in  writing  to  erect  hustings 
for  the  defendant  for  19L  IO5.,  receiving  the  wood  back  and  finding  labor,  and 
the  hustings  were  destroyed  by  a  mob,  the  defendant  being  sued  for  not  re- 
storing the  wood  produced  on  notice  the  agreement ;  it  was  held  that  the  sub- 
scribing witness  need  not  be  called :  Fuller  v.  Pattrick,  18  L.  J.,  Q.  B.  236.  In 
an  action  by  a  lessee  against  his  assignee  of  a  lease,  the  plaintiff  having  proved 
the  execution  of  the  counterpart,  the  original  being  in  the  defendant's  pos- 
session, it  was  held  that  it  was  unnecessary  for  the  plaintiff  to  prove  the  execo- 
tion  of  the  original  on  its  production  by  the  defendant:  Burnett  v.  Lynch,  5  B. 
&  C.  (11  E.  C.  L.  R.)  589.  Where  the  attorney  of  the  lessors  of  the  plaintiff 
obtained  from  a  lessee  and  defendant,  the  lease  to  the  latter,  in  order  to  prevent 
the  lease  from  being  set  up  as  a  defence,  and  afterwards  obtained  an  authority 
from  th.it  lessee  to  detain  the  lease ;  it  was  held,  that  on  the  lease  being  pro- 
duced at  the  instance  of  the  defendant,  no  proof  was  necessary.  For  the  lessors 
of  the  plaintiff  were  to  derive  a  benefit  from  the  possession  of  the  lease,  and  the 
conduct  of  their  attorney  amounted  to  a  recognition  of  the  lease  as  a  valid  in- 
strument: Doe  V.  Heming,  6  B.  &  C.  (13  E.  C.  L.  R.)  28. 


567  PRIVATE     DOCUMENTS. 

r*rp'7-\  veyed  an  estate  to  *the  plaintiff,  and  which  by  its  description 
of  the  extent  excluded  the  locus  in  quo  ;  and  the  court  held, 
that  since  the  plaintiff  would  have  no  interest  in  the  estate  if  the  deed 
did  not  convey  it,  the  production  of  the  deed  was,  against  himself, 
good  evidence  of  its  execution.  The  court,  however,  in  tliis  case, 
admitted  the  general  doctrine  expounded  in  Cfordon  v.  iSecretan,  and 
assented  to  the  case  put  there  by  way  of  illustration,  of  an  heir  at 
law  Avbo  produces  a  will  upon  notice  given  by  a  devisee  named  in  the 
will.  So  where  both  parties  claim  an  interest  under  the  instrument 
so  produced,  such  proof  is  unnecessary."  As  where  the  plaintiflF 
claims  under  the  original  lessee,  and  the  defendant  under  the  assign- 
ment."^ An  admission  by  the  attorney  of  the  party  in  possession  of 
the  deed  before  the  trial,  that  the  party  claims  under  the  deed,  has 
been  held  to  be  sufficient.®  But  the  interest  under  a  deed  in  the  party 
producing  it,  which  renders  its  proof  by  the  attesting  witness  unneces- 
sary, must  be  an  interest  claimed  by  him  in  the  cause.^  A  party  also 
r*srfi1  ^^  ^^^*  entitled  *to  read  a  deed  in  evidence  without  the  usual 
proof,  on  the  mere  ground  of  its  coming  out  of  the  possession 
of  the  adversary,  except  where  the  deed  is  produced  by  the  adversary 
upon  the  trial  of  the  cause. ^  Where  a  deed  has  been  received  from 
the  possession  of  the  adversary,  and  remained  in  the  possession  of  the 
party  producing  it  for  some  months  previous  to  the  trial,  who  might 
therefore  have  been  prepared  to  prove  the  execution,  it  was  held  that 

<=  Doe  V.  Wilkins,  2  N.  &  M.  (28  E.  C.  L.  R.)  434. 

^  Knight  v.  Martin,  1  Gow  (5  E.  C.  L.  R.)  26. 

*  Roe  V.  Wilkins,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  86 ;  KnitjU  v.  Martin,  Gow  (5 
E.  C.  L.  R.)  26.  See  Doe  v.  Heming,  supra.  As  to  admissions  by  an  attorney, 
see  Vol.  II.,  tit.  Attorney,  Admissions.  Such  an  admission,  if  untrue,  would 
operate  to  the  deception  of  the  party  to  whom  it  was  made. 

'  Eearden  v.  Minter,  5  M.  &  G.  (44  E.  C.  L.  R.)  204.  In  this  case  the  plaintiff 
claimed  commission  for  the  defendant  as  his  agent  in  procuring  him  an  appren- 
tice. The  defendant  pi'oduced  the  apprenticeship-deed,  under  notice  to  do  so. 
It  was  held  that  the  case  did  not  fall  within  the  exception  to  the  rule  requiring 
the  execution  to  l>e  proved,  the  defendant  not  claiming  in  that  cause  any  in- 
terest under  the  deed.  So,  where  the  defendant,  to  prove  that  he  had  been  in 
partnership  with  the  plaintiff,  offered  a  written  contract  in  evidence,  purporting 
to  be  made  by  him  and  the  plaintiff,  as  partners,  with  K.,  a  builder,  for  work  to 
V>e  done  by  K.  upon  the  premises  where  the  plaintiff  carried  on  the  business  in 
which  tbe  partnership  was  alleged  to  have  subsisted,  the  contract  being  in  the 
plaintiff's  custody,  was  produced  ))y  him  on  notice,  but  it  was  held  inadmissible 
without  proof  of  the  execution:  Collins  v.  Baynton,  1  Q.  B.  (41  E.  C.  L.  R.) 
117. 

"■  Vacher  v.  Cocks,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  144. 


PROOF     OF — FROM    ADVERSARY'S    POSSESSION.  568 

it  could  not  be  read  without  the  ordinary  proof. "^  A  parchment  coming 
out  of  the  adversary's  possession,  without  either  signature  or  seal,  may 
be  read  as  a  document  coming  out  of  the  adversary's  possession,  but 
not  as  a  deed.'  Another  exception  to  the  general  rule  is  that  of  a 
public  officer,  such  as  a  sheriff,  who  produces  an  instrument,  the  exe- 
cution of  which  he  was  bound  to  procure;  as  against  him,  it  is  pre- 
sumed to  have  been  duly  executed.'' 

If  the  adversary  does  not  produce  it,  proof  must  then  be  given, 
as  in  case  of  the  loss  of  the  deed.'  But  it  has  been  *said  r*rfiQ-| 
that  slighter  evidence  will  suffice,  where   the  deed  is  in   the 

M  B.  &  Ad.  (20  E.  C.  L.  R.)  144.  And  in  Carr  v.  Burdiss,  1  C,  M.  &  R. 
782,  Parke,  B.,  observed,  that  if  the  deed  had  been  given  up  before  the  action, 
it  might  have  made  a  difference. 

'  Eoe  V.  EotcHngs,  7  East  291  ;  Tt/rwhitt  v.  Wj/mie,  2  B.  &  Aid.  554. 

*  Scott  v.  Waithman,  3  Stark.  C.  (3  E.  C.  L.  R.)  168  ;  Barnes  v.  Lucas,  Ry.  &■ 
Mood.  (21  E.  C.  L.  R.)  264 ;  Plumer  v.  Brisco,  11  Q.  B.  (63  E.  C.  L.  R.)  46. 

'  Sir  Edward  Seymour's  case,  10  Mod.  8.  On  the  sale  of  premises  to  the  de- 
fendant's landlord,  a  feoffment  had  been  delivered  by  the  vendor ;  the  question 
was  as  to  the  premises  sought  to  be  recovered  by  the  lessor  of  plaintiff,  being 
parcel  of  the  premises  so  conveyed  ;  notice  had  been  given  to  produce  the  feoff- 
ment, which  not  being  done,  an  abstract  thereof  was  tendered,  there  being  no 
proof  of  any  copy  ever  having  existed.  Held,  that  it  was  admissible  without 
calling  the  attesting  witness ;  and  that  it  not  being  necessary  to  prove  the  feoff- 
ment, neither  was  it  necessary  to  prove  the  livery  of  seisin  :  Doe  v.  Wainwright, 
5  Ad.  &  E.  (31  E.  C.  L.  R.)  520.  The  party  seeking  to  prove  the  contents  of  a 
document  in  the  adversary's  possession,  cannot  compel  him  to  produce  it  on 
the  trial ;  all  he  can  do  is  to  give  notice  to  produce  the  document;  and,  if  he 
omit  to  do  so,  the  only  consequence  is  that  the  party  seeking  to  give  such  evi- 
dence is  entitled,  after  proof  of  possession  by  the  adversary,  to  give  secondary 
evidence  of  the  contents :  see  Entick  v.  Carrington,  19  How.  St.  Tr.  1073  ; 
The  Attorney- General  v.  Le  Merchant,  2  T.  R.  201  ;  Cooper  v.  Gibbons,  3  Camp. 
363.  But  although  it  be  true  that  the  refusal  of  a  party  to  produce  a  docu- 
ment in  his  possession  does  not  authorize  any  direct  inference  as  to  the  contents 
of  the  writing  :  Lawson  v.  Sherivood,  1  Stark.  C.  (2  E.  C.  L.  R.)  314  ;  Cooper  v. 
Gibbons,  3  Camp.  C.  363 ;  and  can  in  no  case  supply  the  defect  of  proof  where 
written  proof  is  requisite ;  as  where  the  action  is  brought  on  a  bond  of  which 
the  defendant,  the  obligee,  has  obtained  possession,  there  seems  to  be  no  rule 
of  law  which  excludes,  or  which  can  exclude,  a  jury  from  taking  this  circum- 
stance into  consideration,  in  connection  with  other  circumstances  in  forming 
their  conckision  on  a  matter  of  fact,  to  the  proof  of  which  written  evidence  is 
not  essential.  It  is  scarcely  possible  that  an  unfavorable  presumption  should 
not  be  made  against  a  trader,  who,  upon  the  question  whether  particular  goods 
had  been  paid  for  by  a  customer,  refused  to  produce  his  books  when  called  for 
to  show  credit  given.  This  principle  seems,  in  effect,  to  be  admitted  by  the 
authorities  (see  note  (^h)  ),  which  state  that  slighter  evidence  will  suffice  to 
prove  a  deed  where  it  is  in  the  hands  of  the  adversary,  than  when  it  is  lost  or 
destroyed  :  see  Roe  v.  Harvey,  4  Burr.  24S4  ;  Bate  v.  Kinzey,  1  C,  M.  &  R.  41. 


569  PRIVATE     DOCUMENTS. 

hands  of  the  adversary  than  where  it  is  proved  to  have  been  lost  or 
destroyed."  Where  a  party,  after  notice,  refuses  to  produce  an 
agreement,  it  is  to  be  presumed,  as  against  him,  that  it  is  properly 
r^rr^n-i  Stamped."  *  Where  the  declaration  in  covenant  alleged  that 
the  deed  was  in  the  possession  of  the  defendant,  and  on  non 
est  factum  pleaded,  it  was  proved  that  the  deed  was  in  the  hands  of 
the  defendant,  to  whom  notice  had  been  given  to  produce  the  deed, 
and  the  plaintiflF  gave  parol  evidence  of  the  deed,  the  attesting  wit- 
ness being  in  court ;  it  was  held  that  the  parol  evidence  was  well 
received."  Where  two  parts  of  an  agreement  are  signed  by  both 
parties,  one  of  which  is  stamped,  and  is  the  possession  of  the  defend- 
ant ;  if  he  refuse  to  produce  it  upon  notice,  the  unstamped  part  is 
receivable  as  secondary  evidence  of  the  contents  of  the  other. ^  So, 
although  the  unstamped  counterpart  were  not  signed  by  the  parties.'' 
If  a  party,  after  notice,  does  not  produce  a  document  in  his  custody, 

But  now,  by  15  Vict.  c.  99,  s.  6,  the  party  may  obtain  the  evidence  by  a 
summons. 

■"  12  Vin.  Abr.,  T.  b.  65,  pi.  22;  Eccleston  v.  Spehe,  Carth.  79  ;  see  Pritt  v. 
Fairclough,  3  Camp.  305,  supra.  In  covenant  by  a  remainderman  for  not  re- 
pairing :  plea,  that  lessor  was  only  tenant  for  life  ;  held,  that  after  notice  to  the 
plaintiff  to  produce  a  specific  deed,  the  steward  might  be  called  to  prove  the 
existence  and  nature  of  it ;  and  although  the  possession  of  the  steward  might 
be  considered  as  the  possession  of  his  principal,  so  as  to  protect  him  from  pro- 
ducing it  under  a  spa.  duces  tecum,  his  knowledge  of  the  contents  was  not 
within  the  principle  of  privileged  communications,  which  extend  not  beyond 
counsels  and  attorneys :  Earl  of  Falmouth  v.  ilfoss,  11  Price  455. 

"  Crisp  V.  Anderson,  1  Stark.  C.  (2  E.  C.  L.  R.)  35:  Pooley  v.  Goodioln,  4  Ad. 
&  E.  (31  E.  C.  L.  R.)  94.  But  if  the  person  who  gives  secondary  evidence  of 
its  contents  shows  it  to  be  unstamped,  the  case  is  different:  see  Croivther  y. 
Solomons,  ante,  p.  541,  note  (n).  A  judge  has  no  power  to  order,  in  the  case  of 
a  document  supposed  to  be  lost,  that  if  the  party  does  not  produce  it  to  be 
stamped  a  copy  stamped  shall  be  read  in  evidence,  and  the  other  side  shall  be 
precluded  from  producing  the  original  or  objecting  that  it  was  not  stamped: 
Raven  v.  Hamilton,  15  Q.  B.  (69  E.  C.  L.  R.)  191. 

•  Cooke  v.  Taiisivell,  8  Taunt.  (4  E.  C.  L.  R.)  450.  So,  in  a  case  of  a  notice  to 
quit :  Poole  v.  Waaren,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  582. 

p  Waller  v.  Ilorsfall,  1  Camp.  C.  501.  It  seems,  that  where  the  instrument, 
if  produced  by  the  .adversary  on  notice,  would  have  been  admissible  in  evidence 
without  proof  of  execution,  a  copy  is  also  admissible  in  evidence  without  proof 
of  execution  :  Daxson  v.  Havjh,  1  Es]).  C.  409.  In  an  action  of  covenant  on 
an  indenture  of  apprenticeship,  where  the  defendant  did  not  produce  it  after 
proof  of  possession  by  him  and  notice,  it  was  held  that  the  plaintiff  might 
give  parol  evidence  of  the  contents,  without  calling  the  subscribing  witness  : 
Cooke  v.  Tanswell,  8  Taunt.  (4  E.  C.  L.  R.)  450. 

"*  Garnons  v.  Swift,  1  Taunt.  507. 


PROOF   or — IN   adversary's    possession.  570 

the  party  giving  the  notice  is  entitled  to  give  secondary  evidence  of 
the  instrument.  And  it  has  been  held,  that  in  such  case  the  party 
giving  the  notice,  may  give  such  secondary  evidence  without  calling 
the  subscribing  witness;'  *even  although  he  know  the  name  (-:f:c7-|-i 
of  the  subscribing  witness. °  Where  a  party  is  proved  to 
have  destroyed  a  document  which  would  have  been  evidence  against 
him,  slight  evidence  will  usually  be  sufficient  to  supply  it.*  The 
same  principle  applies  where  the  party  for  sinister  purposes  with- 
holds the  instrument.  Where  the  instrument  is  out  of  the  power  of 
the  party,  secondary  evidence  is  admissible.  As  where  a  will  re- 
mains in  Chancery  by  the  order  of  the  court."  The  party  obliging 
the  adversary  to  give  secondary  proof,  cannot  by  retracting  or  pro- 
ducing the  original,  compel  him  to  give  the  ordinary  proof  ;^  nor  can 
he  produce  it  as  part  of  his  own  case.^  Nor  can  he  put  it  into  the 
bands  of  a  witness,  and  examine  as  to  the  time  when  an  interlineation 
was  made  in  it." 

A  deed  or  other  instrument  may  be  read  Avithout  proof  of  execu- 
tion, by  virtue  of  a  rule  of  court  to  that  effect. ^  And  now  by  rule 
H.  T.,  4  Will.  IV.,  a  judge  at  chambers  may,  with  consent,  order 
the  admission  in  evidence  of  documents  upon  notice  given  in  due 
form.  The  judge's  order  is  expressed  to  be  with  a  saving  of  all  just 
exceptions  to  the  admissibility  of  the  document ;  and  therefore  they 
may  still  be  taken  at  the  trial.  The  admission  of  a  document 
under  this  order  is  a  waiver  of  any  objection  to  interlineation  in  it, 
for  as  it  prevents  the  necessity  of  calling  *the  attesting  p^._^ 
witness,  it  should  also  prevent  the  taking  of  any  objection  -• 

"■  Cooke  V.  Tanswell,  8  Taunt.  (4  E.  C.  L.  R.)  450.  Where  an  instrument  has 
been  destroyed  and  the  witness  is  known,  he  must  be  called  :  Gillies  v.  Smithers, 
2  Stark.  C.  (3  E.  C.  L.  R.)  528.  But  where  the  plaintiff  declared  upon  a  lost 
bond,  and  a  witness  stated  that  there  were  attesting  witnesses  whose  names  he 
did  not  know,  it  was  held,  that  the  plain tifT  was  entitled  to  recover  without 
calling  either  of  them  :  Keeling  v.  Ball,  Peake's  Ev.  96. 

*  Cooke  V.  Tanswell,  supra,  per  Gibhs,  C.  J. 

'  A  small  matter  will  supply  it.     Per  Ilolt,  J.,  Anon.,  Lord  Raym.  731. 

"  B.  N.  P.  254 ;  10  Co.  92. 

"  Jackson  v.  Allen,  3  Stark.  C.  (3  E.  C.  L.  R.)  74;  Edmonds  v.  Challis  and 
others,  7  C.  B.  (62  e'.  C.  L.  R.)  413. 

"^  Doe  dem.  Thompson  v.  Hodgson,  12  Ad.  &  E.  (40  E.  C.  L.  R.1  135.  Nor  even 
use  it  to  refresh  memory  of  a  witness  :  per  Wilde,  C.  J.,  Bristol  Assizes  1847, 
Roscoe  on  Evidence,  8th  ed.  11. 

^  Doe  V.  Cockell,  6  C.  &  P.  (25  E.  C.  L.  R.)  525.  See  Leivis  v.  Hartley,  7  C. 
&  P.  (32  E.  C.  L.  R.)  405. 

y  Gilb.  Law  of  Ev.  91  ;  Tr.  per  Pais  446.  For  the  general  rule  IL  4  Will. 
IV.  c.  20,  as  to  the  admission  of  documents,  see  Vol.  IL,  tit.  Admissions. 


572  PRIVATE     DOCUMENTS. 

which  such  a  person  could  remove/  but  it  does  not  Avaive  an  objec- 
tion to  the  stamp. ^  So  a  document  may  be  read  without  proof,  where 
the  party  or  his  attorney  makes  an  admission  of  its  execution  delibe- 
rately for  the  purposes  of  the  cause.''  If  the  admission  be  signed 
by  the  attorney  on  the  record,  it  may  be  read ;  but  if  he  be  not  the 
attorney  on  the  record,  further  proof  must  be  given  to  show  that 
he  was  the  authorized  agent  of  the  party."  So  it  may  be  read,  if 
the  attorney  agree  that  the  other  party  should  act  on  the  instru- 
ment, as  if  the  witness  had  been  produced;''  or  even  merely  agree 
to  admit  the  handwriting.®  But  notwithstanding  an  agreement  by 
the  attorney  to  admit  the  due  execution  of  the  specialty  mentioned  in 
the  declaration,  the  defendant  may  still  object  on  the  ground  of  vari- 
ance.^ So  the  deed  may  be  read  where  it  is  admitted  *by  the 
^  J  pleadings.  In  all  these  cases  the  consent  of  parties  super- 
sedes the  necessity  of  the  usual  proof,^  since  it  is  the  office  of  the 
jury  to  decide  upon  those  facts  only  which  are  in  controversy.  It 
has  been  already  seen  that  a  mere  parol  admission,  or  even  an  admis- 

*  Freeman  v.  Steggal,  19  L.  J.,  Q.  B.  18. 

»  Vain  V.  Whiitington,  Car.  &  M.  (41  E.  C.  L.  R.)  484. 

''  Griffiths  V.  Williams,  1  T.  R.  710:  where  it  was  the  attorney's  agent: 
Young  v.  Wright,  1  Camp.  140  ;  Gainsford  v.  Grammar,  2  Camp.  9.  But  mere 
statements  made  by  an  attorney  in  the  course  of  conversation  arc  not  admissi- 
ble :  Parkins  v.  Haiokshaiv,  5  Stark.  C.  239  ;  Fetch  v.  Lyon,  9  Q.  B.  (58  E.  C. 
L.  R.)  147  ;  Wilson  v.  Turner,  1  Taunt.  399.  Although  made  to  the  opposite 
attorney,  not  being  intended  as  an  admission  in  the  cause  :  Fetch  v.  Lyon,  9  Q.  B. 
(58  E.  C.  L.  R.)  147.  But  an  undertaking  by  the  attorney  to  appear  for  L.  and  M., 
joint  owners  of  the  sloop  A.,  is  evidence  that  they  were  such  owners  :  Marshall  v. 
Clijf,  4  Camp.  133.  And  a  mere  agreement  to  produce  a  particular  instrument 
does  not  dispense  with  the  necessity  of  proof  when  produced  ;  Wetherston  v. 
Edgington,  2  Camp.  94.     See  Vol.  II.,  tit.  Admissions. 

'  He  must  have  been  the  party's  attorney  when  the  admission  was  made : 
Wagstaffx.   Wilson,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  339. 

*  Laing  v.  Kaine,  2  B.  &  P.  85. 

*  Milirard  v.  Temple,  1  Camp.  C.  375.     See  B.  N.  P.  254. 

'  Goldie  V.  I<huttleioorth,  1  Camp.  70.  But  he  must  take  care  that  the  terms 
of  the  admission  do  not  exclude  him  from  taking  the  objection :  Wilkes  v.  Hop- 
kins, 1  C.  B.  (50  E.  C.  L.  R.)  737;  and  see  Filgrim  v.  Southampton  Railway 
Company,  18  L.  J.,  C.  P.  330. 

«  It  may  be  used  on  a  new  trial :  Elton  v.  Larkins,  1  M.  &  Rob.  196 ;  Langley 
v.  Earl  of  Oxford,  1  M.  &  W.  508  ;  and  cannot  be  retracted,  even  by  a  new 
attorney  after  the  death  of  the  attorney  who  made  it :  Doe  dem.  Wetherill  v. 
Bird,  7  C.  &  P.  (32  E.  C.  L.  R.)  G  ;  Wilkes  v.  Hopkins.  An  admission  signed 
by  the  obligor's  attorney,  acknowledging  the  signature  of  his  client  and  of  the 
attesting  witness,  is  presumptive  evidence  of  delivery:  Milward  v.  Temple^  1 
Camp.  375. 


PROOF    BY    ADMISSIONS.  573 

sion  in  Chancery,''  by  a  party  of  his  execution  of  a  deed,  was  formerly 

considered  insufficient,  but  that  such  proof  will  now  suffice.' 

By  the  stat.  27  Hen.  VIII.,  c.  16,  a  bargain  and  sale  of  an  estate 

*of  inheritance  or  of  freehold,  must  be  enrolled.''     And  since    ^ ,  _„  ,^ 

r  5741 
the  law  requires   such  enrolment,  it  has  been  held  in  many    •-         -• 

cases  that  enrolment  is  sufficient  evidence  of  the  lawful  execution  of 

the  deed,'  as  against  all  parties. 

^  As  to  admissions  of  execution  by  the  parties  themselves,  see  ante,  pp.  505, 
506. 

*  Supra,  505.  In  one  case,  where  the  subscribing  witness  did  not  appear,  an 
endorsement  by  the  obligor  on  the  deed  was  read,  reciting  a  proviso  within  the 
deed,  that  it  should  be  void  on  payment  of  a  sum  of  money,  and  acknowledging 
the  non-payment,  and  admitting  the  deed  ;  this  was  held  to  be  proof  (B.  N.  P. 
254) ;  but  note,  that  in  this  case  the  witness  did  not  appear,  and  qu.,  whether 
his  absence  was  not  accounted  for. 

''  See  supra,  p.  261,  note  [j).  Deeds  were  also  enrolled  at  common  law  pro 
salvci  custodid :  1  Salk.  389.  And  at  common  law  any  deed  may  be  enrolled 
upon  the  acknowledgment  of  a  party  to  it,  who  cannot  afterwards  deny  the 
execution :  B.  N.  P.  256.  The  enrolment  of  a  deed  under  this  statute  is  a 
record :  R.  v.  Hopper,  3  Price  495.  And  therefore  is  not  traversable  in  any 
material  part,  such  as  the  date  of  the  enrolment:  3  Price  495.  Hence  an 
examined  copy  of  a  memorial  of  a  deed  required  to  be  enrolled  by  an  act  of 
Parliament  is  evidence  of  the  instrument.  Thus  it  has  been  held,  that  an 
examined  copy  of  the  memorial  of  an  assignment  of  a  judgment,  which  was 
required  to  be  enrolled,  was  evidence  of  the  fact  of  assignment.  See  Hohhouse 
V.  Hamilton,  1  Sch.  &  Lef.  207  ;  Fitzgerald  v.  Fitzgerald,  8  C.  B.  (65  E.  C.  L. 
R.)  592.  In  the  case  of  Baikie  v.  Chandless,  3  Camp.  C.  17,  in  an  action 
against  an  attorney  for  negligence  in  the  purchase  of  an  annuity,  which  was 
void  for  want  of  a  sufficient  memorial,  in  order  to  prove  the  memorial  a  copy 
was  offered  in  evidence,  which  had  been  examined  with  the  instrument  at  the 
Rolls  ;  upon  the  objection  taken,  that  a  copy  of  the  original  memorial  which 
the  defendant  had  carried  in  should  be  produced,  Lord  Ellenborough  held  that 
the  copy  proposed  was  admissible.  The  Act  required  the  memorial  carried  in 
to  be  eni-olled  correctly ;  and  it  was  to  be  presumed  that  those  concerned  had 
done  their  duty  under  the  Act.  The  enrolment  was  a  sort  of  statutable  recoi'd, 
and  an  examined  copy  of  it  admissible.  In  the  case  of  Tinkler  v.  Walpole,  14 
East  226,  the  case  of  a  ship's  register  was  distinguished  from  that  of  an  enrol- 
ment under  a  statute  ;  Lord  Ellenborough  observed,  "  The  case  of  enrolments 
stands  on  a  particular  statute;  the  statute  of  Anne  (10  Anne,  c.  18,  s.  3),  pro- 
vides that  copies  of  the  instrument  of  indentures  of  bargain  and  sale,  examined 
with  the  enrolment,  signed  by  the  proper  officer,  and  proved  on  oath,  shall  have 
the  same  force  and  eifect  as  the  original  indentures.  But  the  Register  Acts 
have  not  attributed  to  the  registers  the  same  effect  as  if  the  persons  named 
therein  were  proved  to  be  the  owners." 

'  Wi/mark's  case,  5  Co.  74  ;  Stile  462 ;  Eden  v.  Chalkill,  1  Keb.  117  ;  Smartle 
V.  Williams,  Salk.  280 ;  B.  N,  P.  255,  256.  A  copy  of  an  enrolment  of  a  deed 
to  lead  the  uses  of  a  fine  is  prima  facie  evidence  of  the  deed  :   Taylor  v.  Jones, 


575  PRIVATE     DOCUMENTS. 

j-^p^-.-,  *The  practice  is  admitted,  but  the  principle  doubted,  ia 
L  '^  -I  Buller's  Law  of  Nisi  Prius,'"  both  because  the  authority 
relied  upon  in  support  of  such  practice  is  the  case  of  Smartle  v. 
Williams^  where  the  acknowledgment  was  by  the  bargainor,  against 
whom  the  enrolment  was  offered  in  evidence,  and  not  by  the  bar- 
gainee, as  stated  in  the  report  of  Salkeld;"  and  besides,  that  the 
bargain  and  sale  in  that  case  was  of  a  mere  term,  and  therefore  was 
not  within  the  statute.  But  it  seems  that  the  enrolment  of  any 
deed  upon  the  acknowledgment  of  a  party  is  evidence  against  him- 
self whether  the  deed  does  or  does  not  need  enrolment,  as  in  the 
case  of  Smartle  v.  Williams,"  of  a  release,  and  this  has  been  the 
practice. P  The  register  of  a  conveyance  in  a  register  county,  is  not 
evidence,  except  as  secondary  evidence,  where  the  adversary  has  had 
notice  to  produce  the  conveyance.'*  When  the  deed  is  enrolled,  the 
1  Ld.  Raym.  746.  An  enrolment  of  a  deed  is  not  a  record,  because  it  is  not  the 
act  of  the  Court,  but  only  the  private  act  of  the  party  authenticated  in  Court: 
Gilb.  Law  of  Ev.  92.  But  see  E.  v.  Hopper^  3  Price  495,  where  it  was  held 
that  the  enrolment  of  a  bargain  and  sale,  under  the  statute  of  Henry  A^III., 
was  a  record,  that  the  date  was  a  material  part  of  the  record,  and  that  proof  of 
a  different  date  was  not  admissible.  All  acknowledgments  of  deeds  in  K.  B. 
are,  by  rule  of  Court,  to  be  made  on  the  plea  side,  in  open  court  (1  Salk.  389), 
and  the  enrolment  is  made  either  upon  the  acknowledgment  or  proof  of  the 
delivery  of  the  deed  by  the  party :  Com.  Dig.,  Bargain  and  Sale,  B.  6 ;  for  the 
bargainor  might  die  before  acknowledgment.  After  a. deed  had  been  enrolled, 
it  seems  that  a  party  could  not  plead  non  est  factum,  but  that  he  might  avoid 
the  effect  of  it  by  pleading  riens  passa  par  le  fait:  Gilb.  Law  of  Ev.  145;  1 
Leon.  184-5.  And  infants,  feme  coverts,  and  strangers.  Com.  Dig.,  Bargain 
and  Sale,  B.  10,  are  not  concluded  by  the  enrolment.  The  endoi'sement  of  a 
registration  in  Ireland,  on  a  deed  executed  there,  need  not  be  proved  :  Pi/ne  v. 
Dor,  1  T.  R.  55.     See  also  Garrick  v.  Williams,  3  Taunt.  540. 

-"  B.  N.  P.  255 ;  Smartle  v.  Williams,  3  Lev.  387. 

-  1  Salk.  280. 

°  3  Lev.  387  ;  Com,  Dig.,  tit.  Evidence,  B.  1.  It  was  observed  by  Bayley,  J., 
in  the  case  of  Tinkler  v.  Walpole,  14  East  230,  that  in  the  case  of  Smartle  v. 
Williams,  the  deed  was  thirty  years  old  ;  and  see  B.  N.  P.  255,  where  it  is  said 
that  if  the  deed  need  no  enrolment,  the  enrolment  will  not  be  evidence :  1  Keb. 
117;  Salk.  280. 

P  B.  N.  P.  256.  In  Lady  Ilolcroft  v.  Smith,  2  Freeman  259,  a  distinction  was 
iiiiide  between  deeds  of  bargain  and  sale,  enrolled  in  pursuance  of  the  statute, 
and  other  deeds  enrolled ;  and  the  court  held,  that  a  copy  of  a  deed  enrolled  for 
safe  custody,  would  not  be  evidence  otherwise  than  against  the  party  who  sealed 
it,  and  all  claiming  under  him. 

"i  Mollon  v.  Harris,  2  Esp.  C.  549.  And  it  is  such  evidence  against  the  repre- 
sentatives of  the  party  by  whom  the  conveyance  was  registered:  Wollastonson 
V.  Uakewill,  3  M.  &  G.  (42  E.  C.  L.  R.)  297.  An  examined  copy  is  evidence: 
Doe  V.  Kilncr,  2C.&P.  (12E.C   L  R.)  289. 


PROOF     BY     ENROLMENT.  575 

endorsement    of  the    enrolment    is    evidence  without  further  proof, 

because  the  officer  is  intrusted  to  authenticate  *such  a  deed    ^^^„  .^ 

r  5701 
by  enrolment."     But  where  a  copy  is  used  as  secondary  evi-    ^         -• 

dence,  it  must  be  proved  to  have  been  examined  Avith  the  enrolment.' 
A  deed  purporting  to  be  the  deed  of  several,  may  be  enrolled  on 
the  acknowledgment  of  one  alone,*  and  is  sometimes  enrolled  upon 
the  acknowledgment  of  a  mere  nominal  party,  whose  name  is  intro- 
duced for  the  very  purpose,  the  parties  themselves  residing  abroad." 
It  would  therefore  be  manifestly  inconsistent  Avith  the  plainest  princi- 
ples of  justice  to  admit  such  enrolments  to  be  evidence  against  those 
who  had  not  acknowledged  them,  without  proof  of  the  execution  of 
the  deeds ;  as,  for  instance,  to  receive  a  deed  acknowledged  by  a  bare 
trustee,  without  proof  of  execution  by  the  owner  of  the  inheritance.'' 
And  although  it  appears  that  an  opinion  once  prevailed  to  this  effect, 
yet  it  seems  to  be  so  destitute  of  principle,  that  it  is  not  probable 
that  it  would  now  be  acted  upon. 

By  the  stat.  10  Anne,  c.  18,  s.  3,^  where  in  any  pleading  any 
indenture  of  bargain  and  sale  enrolled  shall  be  pleaded  with  a  pro- 
fert  in  curid,  the  person  so  pleading  may  produce  a  copy  of  the  en- 
rolment of  such  bargain  and  sale  ;  *and  such  copy,  examined 

r*577 1 
and  signed  by  the  proper  officer,  and  proved  upon  oath  to    •-         -^ 

be  a  true  copy,  shall  be  of  the  same  force  as  the  indentures  of  bar- 
gain and  sale  would  be.^ 

It  is  sufficient  for  a  party  in  ejectment  on  an  annuity  deed  to  prove 
the  deed  without  proving  the  enrolment,  and  it  lies  on  the  party  who 
insists  on  the  want  of  enrolment  to  prove  the  negative.^     It  seems 

*■  The  production  of  a  deed  with  the  memorial  endorsed  is  sufficient  proof  of 
the  enrolment:   Compton  v.  Chandless,  4  Esp.  C.  18  ;  B.  N.  P.  229. 

"  B.  N.  P.  229. 

*  B.  N.  P.  256  ;  Thurle  v.  Madison,  Sty.  462. 

°  Salk.  389. 

^  B.  N.  P.  256. 

y  This  provision  was  made  for  supplying  a  failure  in  pleading  or  deriving  title 
to  lands,  conveyed  by  such  deeds  of  bargain  and  sale,  where  the  original  inden- 
tures are  wanting,  which  often  happens,  especially  where  divers  lands,  &c.,  are 
comprised  in  the  same  indenture,  and  afterwards  devised  to  different  person. 
See  14  East  231,  1  Sch.  &  Lef.  107.  Before  this  statute  an  enrolment  could  not 
have  been  pleaded,  although  a  deed  had  been  exemplified  under  the  great  seal ; 
it  was  necessary  to  make  a  profert  of  the  deed  itself  under  seal :  Co.  Litt.  225, 
b. ;  and  see  Olive  v.  Gwyn,  Hard.  119 ;  see  the  stat.  8  Geo.  II.,  c.  6,  s.  22,  con- 
cerning Deeds  of  Bargain  and  Sale  of  Lands  in  the  North  Riding  of  Yorkshire. 

y  As  to  deeds  registered  under  7  Anne,  c.  20,  see  Doe  v.  Clifford,  2  C.  &  K. 
(61  E.  C.  L.  R.)  448. 

^  Doe  V.  Bingham,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  672 ;  Doe  v.  Mason,  3  Camp.  7. 


577  PRIVATE     DOCUMENTS. 

that  a  bargain  and  sale  and  enrolment  of  lands  conveyed  to  a  charity, 
will  not  be  presumed  from  long  enjoyment/ 

Although  it  has  been  held  that  a  deed  to  lead  the  uses  of  a  fine 
requires  no  proof,*"  on  account  of  the  strong  presumption  that  the 
parties  meant  to  convey  the  lands  to  some  uses  or  other  ;  yet  in  a 
subsequent  case,  the  judges  were  of  opinion  that  such  a  deed  must  be 
proved."  So  it  seems  that  the  counterpart  of  such  a  deed  is  not  ad- 
missible in  evidence  without  the  usual  proof. '^ 

It  has  been  held  that  a  recital  of  a  deed  in  a  subsequent  deed  is 
evidence  of  the  former  against  a  party  to  the  latter.  Thus,  a  recital 
of  the  obligor's  appointment  to  an  office,  in  a  bond  for  faithful  exe- 
cution of  its  duties,  is  evidence  against  him  of  that  appointment.®  The 
recital  of  a  lease  is  evidence  of  the  lease  against  the  releasor, 
L  J  and  those  who  claim  under  him  ;^  for  it  *operates  by  way  of 
admission  ;  and  therefore  such  a  recital  is  not  evidence  against  a 
stranger  to  the  second  deed.^' 

*  Doe  V.  Waterton,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  149.  Whether  such  enrolment 
need  be  proved  by  the  party  setting  up  the  deed,  see  Doe  dem.  Williams  v. 
Lloi/d,  1  M.  &  G.  (39  E.  C.  L.  R.)  671 ;  at  all  events,  the  memorandum  endorsed, 
purporting  to  be  signed  by  the  proper  officer,  is  suflScient :  Ibid. 

^  Glascock  V.  Warren,  B.  N.  P.  254. 

«  Griffith  V.  Moore,  B.  N.  P.  255. 

«  B.  N.P.255  ;  Salk.  287,  contra;  see  Doe  v.  rulman,3Q.  B.  (43  E.G.  L.R.)622. 

«  E.  V.  Welsh,  2  C.  &  K.  (61  E.  C.  L.  R.)  296. 

^  Ford  v.  Lord  Grey,  6  Mod.  44 ;  s.  c,  Salk.  285 ;  Cragg  v.  Norfolk,  2  Lev. 
108  ;  Fitzgerald  v.  Eustace,  Gilb.  Law  of  Ev.  87  ;  Hard.  123  ;  Plumer  v.  Brisco, 
11  Q.  B.  (63  E.  C.  L.  R.)  46  ;  and  see  ante,  p.  506,  507.  See  Vol.  II.,  tit.  Admis- 
sions, Notice,  Recital.  Com.  Dig.,  Ev.  B.  5.  It  seems  that  a  recital  is  always 
evidence  as  against  the  party  to  a  reciting  lease,  vrhere  it  operates  by  way  of 
estoppel,  although  not  against  another  party  where  it  cannot  so  operate ;  see 
Cragg  v.  Norfolk,  2  Lev.  108  ;  2  Vent.  170  ;  Roll.  678,  1.  4 ;  and  therefore  the 
recital,  in  a  grant  of  an  office,  of  a  former  grant,  on  the  determination  of  which 
the  present  grant  was  to  commence,  is  no  evidence  in  favor  of  the  grantee  of  the 
former  grant.  Ibid.  But  if  one  relies  on  a  patent  to  prove  a  former  grant  which 
it  recites,  it  is  also  evidence  to  prove  a  surrender,  which  it  also  recites  :  2  Vent. 
171  ;  Com.  Dig.,  Ev.  B.  5.  An  averment,  in  a  declaration  against  a  master  for 
not  inserting  the  true  consideration  in  an  apprentice  deed,  that  A.  R.,  by  a  cer- 
tain indenture,  put  himself  apprentice  to  the  defendant,  is  proved  by  the  pro- 
duction of  the  part  executed  by  the  defendant,  in  which  it  is  recited  that  A.  B. 
put  himself  apprentice,  &c.  :  Burleigh  v.  Stibhs,  5  T.  R.  465.  It  was  questioned 
in  Pearce  v.  Morrice,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  84,  where  in  the  attestation 
of  a  deed  the  parties  state  that  the  two  parts  were  executed  by  them  respect- 
ively, whether  they  are  thereby  estopped  from  denying  the  execution  by  the 
others  ;  and  see  Willington  v.  Browne,  8  Q.  B.  (55  E.  C.  L.  R.)  196. 

*  5  T.  R.  465. 


TIh;  nil<;  of  law  is  that  a  deed,  containing  a  recital  of  another  deed,  is  evi- 


ENROLMENT RECITALS.  578 

No  objection,  it  has  been  said,  arising  intrinsically  from   the  con- 
tents of  an  instrument,  can  preclude  the  reading  of  it,  for  till  it  has 

dence  of  the  recited  deed  against  the  grantor  and  all  persons  claiming  by  title 
derived  from  him  subsequently  :  Jackson  v.  Harrington,  9  Cow.  86.  But  such 
recital  is  not  evidence  against  a  stranger,  nor  against  one  who  claims  by  title  de- 
rived from  the  grantor  before  the  deed  which  contains  the  recital  :  Penrose  v. 
Griffith,  4  Binn.  231  ;  Ganoood  v.  Dennis,  Ibid.  327  ;  Morris''  Lessee  v.  Vande- 
ren,  1  Dall.  67:  Hites^  Heirs  v.  Sch-ader,  3  Litt.  447.  Thus  recitals  of  mesne 
conveyances,  contained  in  a  patent  from  the  Commonwealth  to  A.,  are  not  evi- 
dence of  these  conveyances  against  B.  who  claims  under  a  warrant  from  the 
Commonwealth  issued  prior  to  the  date  of  the  patent  :  Bell  v.  Wctherill,  2  S.  & 
R.  350 ;  Stewart  v.  Butler,  Ibid.  382.  This  rule,  however,  does  not  hold  where 
the  defendant  shows  no  title  :  Doioning  v.  Gallagher,  Ibid.  455.  Whether,  after 
long  possession,  a  recital  in  a  patent  would  not  be  evidence  in  si^ch  case.  Qucere, 
Penrose  v.  Griffith,  tihi  sup.  But  where  a  satisfactory  foundation  is  laid  of  the 
former  existence  and  loss  of  an  ancient  deed,  and  where  the  subscribing  wit- 
nesses have  been  long  dead,  and  there  has  been  no  possession  against  the  deed, 
and  the  recital  is  made  by  those  who  were  likely  to  be  acquainted  with  the  truth 
of  the  fact;  such  recital  is  evidence  of  the  lost  deed  as  against  strangers  :  Gar- 
wood  V.  Dennis,  ubi  sup.  So  a  deed  containing  a  recital  by  the  person  to  whom 
the  lost  deed  is  alleged  to  have  been  made,  who  had  been  in  possession  a  long 
time,  and  who  held  originally  as  tenant  by  the  curtesy,  may  be  admitted  to  ex- 
plain the  nature  of  his  possession,  and  to  show  that  he  exercised  acts  of  ownei*- 
ship,  of  a  public  nature,  inconsistent  with  the  curtesy-estate  :  Ibid.  Though 
the  existence  of  an  absolute  deed  or  lease,  may  be  proved  by  a  recital  in  another 
deed  against  the  party  making  such  recital,  and  all  claiming  under  him,  yet  it 
seems  that  the  existence  of  an  outstanding  mortgage  cannot  be  proved  by  such 
recital ;  for,  if  produced,  it  might  appear  to  have  been  satisfied,  no  release  be- 
ing necessary  to  restore  the  title  to  the  mortgagor:  Jackson  v.  Davis,  18  Johns. 
11,  12,  per  Piatt,  J.  A  recital  in  a  deed,  that  certain  land  had  become  the 
property  of  A.,  is  prima  facie  evidence  against  the  grantor,  that  A.  had  an  estate 
in  fee,  subject  to  be  rebutted  by  proof  that  he  had  a  life  estate  only  :  Stoever  v. 
Lessee  of  Whitman,  6  Binn.  416.  But  a  recital  that  the  grantor  had  entered 
upon  lands,  conveyed  to  A.,  for  condition  broken,  does  not  estop  a  party  who 
claims  under  A.,  and  not  under  the  deed  containing  the  recital,  though  that  deed 
is  given  in  evidence  by  him  to  prove  a  conveyance  to  A. :  Ibid.  A  recital  in  a 
deed  by  two  trustees,  that  a  third  trustee  had  refused  to  intermeddle  with  the 
trust,  is  not  evidence  of  the  fact :  Milner  v.  Cutnmings,  4  Yeates  577.  But  re- 
citals in  a  conveyance  are  evidence  of  pedigree :  Lessee  of  Paxton  v.  Price,  1 
Yeates  500  ;  Morris^  Lessee  v.  Vanderen,  uhi  sup.  If  an  ancient  deed — which 
when  possession  corresponds,  proves  itself — recite  a  power  of  attorney  necessary 
to  give  it  validity,  the  due  execution  of  the  power  will  be  presumed  :  Doe  v. 
Phel2>s,  9  Johns.  169  ;  Doe  v.  Campbell,  10  Ibid.  475,  s.  v.  So,  if  the  reciting 
deed  is  proved  in  the  usual  manner  :  Davidson'' s  Lessee  v.  Beatty,  3  Har.  & 
McHen.  594.  If  a  testator  recite  in  his  will  that  he  has  conveyed  his  lands  to  per- 
sons therein  named,  such  recital  will  estop  his  heirs  from  claiming  the  lands : 
Den  V.  Cornell,  3  Johns.  Cas.  174.     An  admission,  contained  in  a  recital  of  a 


578  PRIVATE     DOCUMENTS. 

been  read  the  court  cannot  judge  of  the  objection.''  The  deposition 
of  one  Oowden  was  offered  in  evidence,  and  proof  was  given  of  the 
death  of  one  Cowden  who  lived  at  Bow  ;  and  Reynohls,  C.  B.,  al- 
lowed the  deposition  to  be  read  upon  this  evidence,  because  it  did 
not  appear,  otherwise  than  by  the  deposition,  that  Cowden  lived  else- 
where than  at  Bow,  and  therefore  the  objection,  that  the  Cowden 
r*"'Q1  "^^'^ose  death  was  proved  was  not  the  Cowden  who  *made  the 
deposition,  was  incomplete  unless  it  was  coupled  with  the 
deposition.'  But  he  said  he  would  leave  it  to  a  jury  to  determine 
whether  the  man  whose  death  was  proved  was  the  man  who  made  the 
deposition.''  If  upon  the  reading  it  appear  that  some  part  is  not 
properly  admissible  in  evidence,  as  if  it  rest  upon  mere  hearsay,  or  if 
an  accomplice  in  his  confession  charge  a  confederate,  the  court  will, 
upon  summing  up,  advise  the  jury  to  leave  the  objectionable  part  out 
of  their  consideration.' 

It  is  also  a  rule  that  no  intrinsic  matter  will  obviate  an  extrinsic 
objection  to  the  reading  of  the  document." 

It  is  also  a  general  rule,  that  where  any  document  is  produced  and 
read  by  one  party,  the  whole  is  to  be  read,  if  the  adversary  require 
it ;°  for  unless  the  whole  be  read  there  can  be  no   certainty  as  to  the 

"  Where  an  objection  was  taken  to  the  reading  an  entry  from  a  corporation- 
book,  on  the  ground  that  it  contained  many  things  not  relating  to  the  corpora- 
tion, Lord  Hardwicke  said,  that  as  the  objection  was  derived  from  the  book 
itself,  it  was  impossible  to  say  that  it  should  not  be  read  ;  but  that  if  any  mate- 
rial objection  should  appear  to  the  book  on  reading,  he  would  mention  it  to  the 
jury  on  summing  up :  Moore  v.  Mayor  of  Hastings,  17  How.  St.  Tr.  845.  It  is, 
however,  to  be  observed,  that  the  Court  may  look  at  and  read  a  document,  in 
order  to  ascertain  whether  it  is  admissible — e.  g.,  in  a  case  of  a  stamp  ob- 
jection— without  having  it  read  aloud.  The  rule  upon  this  subject  has  been 
much  better  understood  of  late,  and  the  old  cases  can  hardly  be  treated  as 
authorities. 

«  Benson  v.  Olive,  1  Ford's  MS.  146. 

*  Ibid.     This  seems  to  be  erroneous  ;  as  it  was  a  question  for  the  judge. 

J  See  Lord  Hardwicke's  observations,  17  How.  St.  Tr.  845;  Moore  v.  The 
Mayor  of  Hastings;  and  of  Wood,  B.,  in  Bullen  v.  Michel,  2  Price  405. 

""  1  Ford's  MS.  115;  Adamthwaite  \.  Singe,  1  Stark.  C.  (2  E.  C.  L.  R.)  113. 

"  Earl  of  Bath  v.  Battersea,  5  Mod.  9 ;  1  Ford's  MS.  146 ;  Andr.  258  ;  but 

deed  of  one  of  the  lessors  in  ejectment,  is  evidence  aginst  all  of  them  :  Brandt 
V.  Klein,  16  Johns.  335.  M. 

As  to  recitals  in  deeds ;  see  Yahoola  Mining  Co.  v.  Toby,  40  Ga.  479  ;  Scharff 
V.  Keener,  14  P.* F.  Smith  376;  Schuylkill  Co.  v.  McCreary,  8  Ibid.  304;  Old- 
ham V.  McClanahan,  2  Duvall  416  ;  Beeching^s  Appeal,  2  Brcwst.  202 ;  Clarke  v. 
Crego,  47  Barb.  599  ;  Williains  v.  Keyser,  1 1  Fla.  234  ;  Deeny  v.  Gray,  5  Wall . 
795. 


INTRINSIC     OBJECTIONS.  580 

real  sense  and  meaning  *of  the  entire  document.  The  en-  i-^^-oat 
tirety,    however,   required   by  this   rule,    is   confined  to   the    '-  -' 

document  in  the  state  in  which  it  is  produced ;  the  fact  tliat  as  pro- 
duced it  is  in  a  mutilated  state,  applies  not  to  the  admissibility,  but 
to  the  value  of  the  evidence."  Upon  the  same  principle,^  where  one 
document  refers  to  another,  the  latter  is,  for  the  purpose  of  such  re- 
ference, incorporated  with  the  former,  and  may  be  read  to  explain  it; 
as  where  the  deposition  of  the  captain  of  a  ship  refers  to  the  log- 
book ;P  or  a  letter  produced  upon  notice  refers  to  other  letters ;''  or 
an  interrogatory  upon  the  examination  of  a  witness  to  a  letter."^     A 

see  supra,  p.  444.  In  equity,  when  a  passage  is  read  from  the  defendant's 
answer,  all  the  facts  stated  in  that  passage  must  be  read  ;  and  if  it  refer  to 
facts  stated  in  any  other  passage,  that  must  be  read  for  the  purpose  of  explana- 
tion ;  ])ut  if  new  facts  be  contained  in  such  other  passage,  they  are  to  be  read 
for  the  purpose  of  explanation  only:  Bartleit  v.  Gillord,  3  Russ.  159.  Where, 
in  a  suit  for  a  legacy,  the  executor  in  the  answer  admitted  assets,  but  insisted 
that  under  the  circumstances  the  legacy  had  been  paid,  it  was  held  (in  equity) 
that  the  plaintiff  was  entitled  to  read  the  admission  without  reading  the  addi- 
tional statement:  Connop  v.  Hayward,  1  Y.  &  C.  33.  So  where  it  was  necessary 
to  prove  a  rule  of  a  benefit  society  by  a  transcript  of  the  rules  in  the  office  of 
the  clerk  of  the  peace,  it  was  held  requisite  to  produce  a  transcript  of  all  the 
rules :  i?.  v.  Botjiies,  1  C.  &  K.  (47  E.  C.  L.  R.)  65.  Where  part  of  a  return  to 
the  office  of  first  fruits,  stating  a  collation  to  a  rectory,  was  material  and 
admitted,  it  was  held  that  the  rest  of  the  return  was  admissible,  as  showing 
the  value  and  accuracy  of  the  document:  Ii-ish  Society  v.  Bishop  of  Berry,  \'2 
CI.  &  F.  641. 

"  Tindall,  C.  J.,  delivering  the  opinion  of  the  judges  in  Lord  Triinlestown  v. 
Kemmis,  9  CI.  &  F.  775. 

P  Where  an  agreement,  under  which  a  party  contended  that  possession  of  a 
ship  to  be  built  for  him  had  been  given  him.  in  order  to  show  that  the  assignees 
of  the  builder  of  the  ship  (who  had  become  bankrupt)  had  no  title,  recited  a 
former  agreement  on  which  the  assignees  relied  to  show  their  title,  it  was  held 
that  the  assignees  were  entitled  to  have  the  letter  read :  Goss  v.  Quinton,  4  Sco. 
N.  S.  471  ;  and  Falconer  v.  Hanson,  \  Camp.  171  ;  Johnson  v.  G'dson,  4  Esp.  C. 
21  ;    Wheeler  v.  Atkins,  5  Esp.  C.  246. 

'  Johnson  v.  Gilson,  4  Esp.  21  ;  secus,  if  the  letter  merely  states  that  others 
are  enclosed  under  its  cover.  Where  letters  are  put  in,  bearing  different  dates, 
others  sent  in  the  interval,  which  form  part  of  the  same  correspondence,  cannot 
be  received  unless  expressly  referred  to  in  the  letters  put  in :  Sturge  v. 
Buchanan,  2  M.  &  Rob.  90.  Where  the  plaintiff  proposed  to  give  in  evidence 
a  letter  of  the  defendant's  attorney,  which  appeared  to  be  an  answer  to  one 
from  the  plaintiff's  attorney.  Pollock,  C.  B.,  thought  he  ought  not  to  do  so 
without  putting  in  the  latter:  Watson  v.  Moore,  1  C.  &  K.  (47  E.  C.  L.  R.)  626. 
But  see  contra,  Lord  Barrymore  v.  Taylor,  1  Esp.  326. 

'  Wheeler  v.  Atkins,  5  Esp.  C.  246,  and  note  ;  if  the  interrogating  party  refuse 
to  produce  the  letter,  he  must  abandon  the  whole  of  the  interrogatories.  Where, 
however,  a  book  of  accounts,  or  shop  book,  is  produced  in  evidence  at  the  re- 


580  PRIVATE     DOCUMENTS. 

"written  answer  made  by  a  party  to  a  question  proposed  to  him,  can- 
not, it  is  said,  be  *read  without  showing  the  question  to  which 
L  -"it  relates,^  not  as  evidence  of  the  fact,  but  to  explain  the 
answer. 

But  letters  written  by  a  party  are  evidence  against  him  without 
producing  those  to  which  such  letters  are  answers ;'  and  a  letter 
written  by  the  plaintiflF's  agent  to  a  witness  is  evidence  against  the 
plaintiff,"  and  does  not  make  the  answer  of  the  witness  evidence  for 
the  plaintiff. 

It  is  also  a  general  rule,  that  whenever  a  party  makes  a  state- 
ment or  admission,  whether  it  be  oral  or  written,  which  is  after- 
wards used  against  him  as  evidence  of  the  stated  or  admitted  fact, 
the  whole  of  the  contemporaneous  statement  or  declaration  must  be 
received  ;  the  part  which  operates  for  him,  as  well  as  that  which 
makes  against  him,  is  admissible  evidence  to  prove  the  existence  of 
the  fact.  Thus,  where  the  defendant  stated  an  account,  in  which  he 
admitted  the  plaintiff's  claim  to  a  certain  extent,  but  stated  also  a 


quest  of  one  of  the  parties,  the  reading  an  entry  from  it  does  not  entitle  the 
other  party  to  read  all  the  other  entries  in  the  book,  but  only  such  as  relate  to 
the  same  particular  subject  matter.  Per  Abbot,  C.  J.,  Catt  v.  Howard,  3  Stark. 
C.  (3  E.  C.  L.  R.)  3;  and  see  ante,  p.  235;  but  see  Wharam  v.  Eoutledge,  5 
Esp.  C.  235. 

'  Rex  V.  Pidon,  How.  St.  Tr.  vol.  xxx.  p.  466  ;  and  see  Watson  v.  Moore, 
supra.  But  an  answer  in  chancery  is  evidence  as  an  admission  under  the 
defendant's  hand,  where  the  bill  is  proved  to  have  been  lost :  Hart  v.  Harrison, 
Mich.  3  Geo.  II. ;  1  Ford's  MS.  145.  On  an  examination  before  the  commis- 
sioners of  bankruptcy,  a  machine  copy  of  a  letter  was  produced  by  the  witness, 
of  which  the  solicitor  to  the  commission  took  a  copy,  held,  that  in  an  action  by 
the  assignees,  the  latter  copy  was  inadmissible  against  the  party  producing  the 
machine  copy,  without  reading  his  examination,  although  notice  had  been 
given  to  produce  the  machine  copy :  Holland  v.  Reeves,  7  C.  &  P.  (32  E.  C.  L. 
R.)  36. 

'  Lord  Barrymore  v.  Taylor,  1  Esp.  C.  326.  The  admission  by  a  witness  in 
court  is  evidence  against  him,  although  he  was  prevented  from  entering  into 
any  explanation:  Collett  v.  Lord  Keith,  4  Esp.  C.  212.  So  the  examination  of 
a  party  by  commissioners  of  bankruptcy,  signed  by  him,  is  evidence,  although 
part  only  was  taken  down  :  Milward  v.  Forbes,  4  Esp.  C.  172. 

"  Where  the  plaintiflF's  agent  wrote  a  letter  to  a  witness  (living  abroad  and 
examined  by  commission),  the  draft  of  which  was  shown  to  and  approved  by 
his  attorney;  held,  that  the  draft  was  admissible  without  producing  the  original, 
as  evidence  of  an  act  done,  but  that  the  answer  of  the  witness  to  the  agent  was 
not  admissible:  Rawlins  v.  Deshorouyh,  <S  C.  &  P.  (34  E.  C.  L.  R.)  321  ;  2  M. 
ct  Rob.  70. 


THE    WHOLE,    WHEN    TO     BE    READ.  582 

counterclaim  for  a  sum  specified,  it  was  *admitte(l  that  the    r*ro9-i 
plaintiff  on  this  evidence  was  entitled  to  recover  no  more 
than  the  balance.'' 

The  principle  does  not  apply  where  another  entry  happens  to  be 
made  upon  the  same  paper  or  parchment,  wholly  distinct  from  that 
which  the  party  reads  in  evidence.^ 

And  the  rule  is  subject  to  the  qualification  that  the  additional 
statement  must  be  so  connected  with  that  which  has  been  given  in 
evidence  as  tendino;  to  show  its  true  nature  and  bearino;.^ 

Where  a  party  is  under  the  necessity  of  producing  and  r-^^roq-i 
*proving  a  writing  in  order  to  connect  a  defendant  with  the 
act  of  an  agent,  the  recital  of  the  authority  under  which  the  agent 
assumes  to  act  will  not  relieve  the  latter  from  the  necessity  of 
proving  that  authority  in  his  own  justification  by  the  proper  evi- 
dence.'^ 

^  Eandle  v.  Blackbwn,  5  Taunt.  (1  E.  C.  L.  R.)  245 ;  Harrison  v.  Turner,  10 
Q.  B.  (59  E.  C.  L.  R.)  482.  So  where,  in  order  to  prove  a  sufficient  memorandum 
of  an  order  for  goods,  within  the  17th  section  of  the  Statute  of  Frauds,  a  letter 
of  the  alleged  purchaser  was  read  in  evidence  which  admitted  the  order,  but 
which  also  asserted  that  the  goods  had  not  been  delivered  in  time  ;  it  was  held 
that  parol  testimony  was  inadmissible  to  prove  that  no  time  was  mentioned : 
Cooper  V.  Smith,  15  East  103.  So,  if  the  drawer  of  a  bill  say  that  he  does  not 
mean  to  insist  on  notice  of  dishonor,  but  that  he  is  only  bound  to  pay  £70,  the 
whole  statement  must  be  taken  together,  and  the  holder  can  recover  no  more 
than  £70:  Fletcher  v.  Froggatt,  2  C.  &  P.  (12  E.  C.  L.  R.)  569.  A  person,  on 
his  examination  before  commissioners  of  bankruptcy,  does  not  bring  his  books 
with  him,  but  while  under  examination  consents  that  the  accountant  shall  make 
extracts  from  them  ;  such  extracts  were  not  allowed  to  be  used  in  evidence  with- 
out reading  the  examination  :  Yates  v.  Carnsew,  3  C.  &  P.  (14  E.  C.  L.  R.)  99. 
But  where  the  plaintiffs  sue  upon  an  account  rendered  by  the  defendant,  they 
may  impeach  by  other  evidence  an  item  in  that  account,  although  the  account 
rendered  was  the  only  evidence  in  the  action  :  Rose  v.  Savory,  2  Bing.  N.  C. 
(29  E.  C.  L.R.)  145. 

y  Sturge  v.  Buchanan,  10  Ad.  &  E.  (37  E.  C.  L.  R.)  598  ;  and  see  Adei/  v. 
Bridges,  2  Stark.  C.  (3  E.  C.  L.  R.)  189  ;  where,  in  an  action  against  a  sheriff 
for  a  false  return,  it  was  held  by  Holroyd,  J.,  that  the  plaintiff  having  given  in 
evidence  a  copy  of  the  Avrit,  the  defendant  was  not  entitled  to  have  his  return 
read,  which  formed  no  part  of  the  document  which  the  plaintiff  gave  in  evi- 
dence. 

'■  Supra,  pp.  234,  235 ;  Prince  v.  Same,  7  Ad.  &  E.  (34  E.  C.  L.  R.)  627.  So, 
in  an  action  for  an  assault,  a  letter  had  been  written  by  the  plaintiff's  attorney, 
containing  an  apology  ;  it  was  held,  that  parts  of  it,  extolling  his  client's  charac- 
ter for  respectability,  could  not  be  read,  nor  was  the  letter  admissible  at  all,  if 
expressed  to  be  written  "without  prejudice;"  Healey  \.  Thatcher,  8  C  &  P. 
(34  E.  C.  L.  R.)  388. 

*  Gray  v.  Smith,  1  Camp.  387.  A''ol.  II.,  tit.  Trespass,  Agency  ;  Stanley  v. 
35 


583  PRIVATE     DOCUMENTS. 

It  is  a  rule  equally  general  with  the  former,  that  in  a  court  of 
law,  it  is  for  the  jury  to  consider  what  credit  is  to  be  attached  to 
the  whole  or  any  part  of  any  particular  statement,  whether  oral  or 
written,''  although  a  rule  less  flexible  seems  to  have  been  adopted  in 
equity."  It  has  also  been  seen  that  this  rule  does  not  make  that 
evidence  which  has  an  insufficient  legal  foundation  ;  as,  for  instance, 
where  that  which  is  stated  in  the  document  professes  to  be  the  mere 
belief  or  opinion  of  the  party,  or  nothing  more  than  hearsay. 

Fielden,  5  B.  &  Aid.  (7  E.  C.  L.  R.)  425.  So  a  plaintiff  in  a  tithe  suit  in  the 
Exchequer,  who  read  part  of  the  defendant's  answer  to  show  what  the  issues 
were,  was  not  concluded  by  the  depositions  contained  in  such  answer  :  Kemjjson 
V.  Yorke,  8  Price  13. 

*  Randall  v.  Blackburn,  5  Taunt.  (1  E.  C.  L.  R.)  245  ;  Beckham  v.  Osborne,  6 
M.  &  G.  (46  E.  C.  L.  R.)  771.  In  the  case  of  Bermon  v.  Woodbridge,  Doug. 
788,  the  whole  of  plaintiff's  case  rested  on  the  testimony  of  one  witness.  Lord 
Mansfield  said  that  the  jury  might  credit  what  the  witness  said  for  the  plain- 
tiff, although  they  disbelieved  what  he  stated  for  the  defendant ;  but  that  if 
they  did  not  believe  his  testimony  for  the  plaintiff,  the  rest  of  his  testimony 
was  clearly  immaterial,  for  he  was  not  to  be  believed  at  all,  and  so  there 
was  no  case  proved  by  the  plaintiff;  and  see  Partington  v.  Butcher,  6  Esp.  C. 
66;  Vol.  II.,  tit.  Limitations. 

"  Supra,  p.  445. 


PART  III. 

OF  PROOFS. 


Having  thus  treated  of  the  general  principles  which  regulate  the 
admissibility  of  evidence,  and  also  of  the  nature  and  qualities  of  the 
different  instruments  of  evidence,  a  more  interesting  branch  of  the 
subject,  the  application  of  these  principles  and  instruments  to  the 
proof  of  issues  generally  and  particularly,  is  now  to  be  considered. 

It  is  to  be  recollected  that  every  verdict  is  compounded  of  law 
and  fact:  of  the  facts,  as  ascertained  by  the  finding  of  the  jury;  of 
the  law,  as  expounded  by  the  judge,  with  relation  to  the  evidence, 
and  applied  by  the  jury  to  the  facts.  The  trial  is  the  process  by 
which  the  facts  are  thus  ascertained  and  the  law  applied. 

In  this  proceeding  it  is  the  business  of  the  parties  to  supply  the 
necessary  evidence;  it  is  the  province  of  the  court  to  pronounce  on 
the  legal  effect  of  the  evidence ;  and  it  is  the  duty  of  the  jury  to 
decide  upon  the  facts,  and  to  apply  the  law.^  Ilence  naturally  result 
three  distinct  subjects  for  consideration  :  and  first,  as  to  the  evidence 
to  be  supplied  by  the  parties. 


CHAPTER  I. 
EVIDENCE  TO  BE  SUPPLIED  BY  THE  PAKTIES. 

This  branch  of  the  division  suggests  two  principal  questions  for 
inquiry  :  first,  upon  whom  the  proof  of  an  issue  *or  fact  is  in-    r^ror-i 
cumbent ;  secondly,  as  to  the  nature,  quality  and  quantity 
of  the  evidence  to  be  adduced,  in  general  and  particular. 

'  Or  by  a  special  verdict  to  fiad  the  facts,  so  as  to  enable  the  court  afterwards 
to  apply  the  law. 


585  PROOFS. 

1st.  Upon  whom  the  proof  is  incumbent.'' 

The  general  rule  is  in  conformity  with  the  suggestions  of  natural 
reason  and  a  principle  of  obvious  convenience  ;  that  the  party  who 
alleges  the  affirmative  of  any  proposition  shall  prove  it ;"  for  a  nega- 
r*5861  *'^^  ^'^^^  ^°*  admit  of  the  *simple  and  direct  proof  of  which 
an  affirmative  is  capable.^  And  this  is  conformable  Avith  the 
maxim   of  the   civil  law,   "  Ui  incumbit  prohatio  qui  dieit,  non  qui 

^  The  question  frequently  involves  that  of  the  right  to  begin,  which  is  treated 
of,  2)osf,  p.  595,  et  seq. 

'  B.  N.  P.  298;  Yin.  Abr.,  Ev.  (S.  a.)  ;  Litt.  R.  36;  Gilb.  Law  of  Ev.  148. 
Prohatio  incumbit  ei  qui  allegat ;  negantis  autem  per  rerum  naturam  nulla  est 
probatio :  Dig.  lib.  22,  tit.  Probat.  See  Catherwood  v.  Chabaud,  1  B.  &  C.  (8 
E.  C.  L.  R.)  150 ;  where  it  was  held,  that  a  defendant,  who  pleaded  an  agree- 
ment between  the  plaintiffs  and  the  defendant,  conditional  on  its  being  assented 
to  by  all  the  creditors  of  the  defendant,  was  bound  to  prove  the  assent  of  all 
the  creditors.  On  an  agreement  by  the  defendant  to  pay  £100  if  the  plaintiff 
would  not  send  herrings  for  one  twelvemonth  to  the  London  market,  and  in 
particular  to  the  house  of  /.  and  A.  M.,  the  plaintiff  proved  he  had  sent  no 
herrings  during  the  twelvemonth  to  the  house  of  J.  and  A.  M. :  held  sufficient 
to  entitle  him  to  recover :  no  proof  being  given  that  he  had  sent  herrings 
within  that  time  to  the  London  market :  Calder  v.  Rutherford,  3  B.  &  B.  (7  E. 
C.  L.  R.)  302.  The  question  upon  whom  lies  the  onus  of  proof  is  often,  though 
not  always,  identical  wnth  the  question  who  ought  to  begin.  This  latter  ques- 
tion will  be  discussed  presently,  and  the  cases  upon  it  will  throw  considerable 
light  upon  the  former  question.  In  many  cases  in  may  be  resolved  by  the  in- 
quiry, who  would  be  entitled  to  the  verdict  if  no  evidence  were  given?  In  the 
case  of  Atnas  v.  Hughes,  1  M.  &  Rob.  464,  Alderson,  B.,  observed,  that  "Ques- 
tions of  this  kind  are  not  to  be  decided  by  simply  ascertaining  on  which  side 
the  affirmative  in  point  of  form  lies  ;  the  proper  test  is,  which  party  would  be 
successful  if  no  evidence  at  all  were  given  ?"  In  that  caset  he  declaration  alleged 
a  breach  of  contract  in  not  embossing  calico  in  a  workmanlike  manner ;  the 
plea,  on  which  issue  was  joined,  alleged  that  the  defendant  did  emboss  the 
calico  in  a  workmanlike  manner.  And  it  was  held  that  the  plaintiff  ought  to 
begin,  for  if  no  evidence  were  to  be  given  on  either  side,  the  defendant  would 
be  entitled  to  the  verdict,  as  it  was  not  to  be  presumed  that  the  work  Avas  badly 
executed.  In  replevin,  or  in  other  cases  where  the  issue  lies  on  the  plaintiff, 
he  is  compelled  to  begin:  Curtis  v.  Wheeler,  1  M.  &  M.  (22  E.  C.  L.  R.)  493. 
Where  the  plaintiff  in  his  plea  to  cognisances,  stated  facts  amounting  to  no7i 
tenuit,  yet  the  affirmative  being  on  him,  it  was  held  that  he  was  entitled  to 
begin  :   Williams  v.  Thomas.  4  C.  &  P.  (19  E.  C.  L.  R.)  234. 

•^  Thus,  upon  an  issue  to  which  the  plaintiffs  alleged  that  certain  goods  were 
not  their  property,  and  the  defendant  alleged  they  wore  their  goods,  the  onus 
of  the  proof  was  held  by  Lord  AI)inger  to  be  on  the  defendant :  Hudson  v. 
Brown,  8  C.  &  P.  (34  E.  C.  L.  R)  774. 

'  The  burden  of  proof  is  always  with  the  party  who  takes  the  affirmative  in 
pleading:  Phelps  v.  Hartwell,  1  Mass.  71  ;  Phillips  v.  Ford,  9  Pick.  39;  Loring 


ONUS    OF     PROOF.  586 

The  proof  is  of  course  to  be  governed  by  the  issue  ;  that  is,  some 
matter  of  fact  alleged  by  one  party  and  denied  by  the  other,  on  the 
existence  or  non-existence  of  ■which  the  claim  or  defence  is  rested. 

The  p:irty  who  alleges  the  affirmative  of  such  a  fact  is  bound  to 
prove  it,  otherwise  it  remains  unproved  and  the  party  fails  in  his 
claim  or  defence.  So,  if  no  evidence  be  given  on  cither  side.  And 
as  the  party  alleging  and  bound  to  prove  the  affirmative  would  fail, 
if  no  evidence  were  given  ;  so,  conversely,  if  it  appeared  that  in  case 
no  evidence  were  given  either  party  would  fail,  the  conclusion  would 
show  that  he  was  the  party  on  whom  the  onus  of  proof  lay.  This, 
however,  is  but  the  same  position  in  a  different  shape ;  the  question, 
AV^ho  Avould  fail  if  no  evidence  were  given?  must  be  decided  by  the 
answer  to  the  further  question.  Who  alleges,  and  is  bound  to  prove 
the  affirmative? 

It  may  then  be  regarded  as  a  general  rule,  that  a  party  who  alleges 
an  affirmative  must  prove  it  according  to  the  rule  of  the  civil  law  ; 
but  doubt  sometimes  arises  on  the  question,  who  does,  in  legal  con- 
sideration, allege  the  affirmative.  It  is  to  be  remarked  that  a  law 
operates  by  annexing  some  defined  consequence  to  some  defined  state 
of  things.  That  to  put  the  law  in  motion  it  is,  of  course,  essential 
that  the  suitor  should  establish  such  a  state  of  things  as  warrants 
such  legal  interference;  the  law,  till  that  be  done,  remains  quiescent, 
neither  presuming  the  existence  of  a  right  until  it  be  shown  to  exist 
by  competent  means,  nor  the  existence  *of  any  fact  essential 
to  the  right.  So,  although  the  law  is  quiescent  until  liability  L  •-  J 
be  proved,  yet  when  legal  liability  has  once  been  established,  the  law 
does  not  discharge  a  party  from  a  legal  liability  proved  to  exist,  un- 
less such  discharge  be  also  established  by  like  means.  Hence,  again, 
as  the  law  will  not  presume  such  a  discharge,  neither  will  it  presume 
any  fact  or  state  of  things  essential  to  such  discharge,  and  not  estab- 
lished by  sufficient  proof.  When  therefore  issue  is  joined  between 
the  parties,  the  question  as  regards  the  onus  of  proof  is.  Which  of 
them  has  alleged  the  existence  of  a  state  of  things  essential  to  his 

V.  Steineman,  1  Met.  204  ;  Costigan  v.  Railroad  Co.,  2  Denio  609  ;  Glvens  v. 
Tidmore,  8  Ala.  746;  Neal  v.  Fesperman,  1  Jones  (N,  C.)  Rep.  446;  McClure 
V.  Piirrell,  6  Ind.  330.  The  true  test  to  determine  where  is  the  burden  of  proof, 
is  to  consider  which  party  would  be  entitled  to  the  verdict  if  no  evidence  were 
oflFered  on  either  side  ;  for  the  burden  of  proof  lies  on  the  party  against  whom 
in  such  case  the  verdict  ought  to  be  given  :  Vieths  v.  Hagge,  8  Clarke  163.  As 
to  burden  of  proof,  see  White  v.  Howard,  52  Barb.  294 ;  McKinney,  v.  Slack,  4 
Green  164  ;  Winans  v.  Winans,  Ibid.  220;  Weaver  v.  Aufour,  30  La.  Ann.  1  ; 
Church  V.  Fagin,  43  Mo.  123  ;  Soulhtvorth  v.  Hoag,  42  III.  446  ;  Oaks  v.  Harri- 
son, 24  Iowa  179 ;  Burton  v.  Mason,  26  Ibid.  392. 


587  PROOFS. 

claim  or  defence  ?  if  lie  does  not  establish  it  by  competent  means  it 
remains  unproved,  and  ex  hypothese  that  party  must  fail.' 

Thus  the  proof  of  an  allegation  of  deficiency  lies  on  the  party  who 
alleges  it,  although  it  imply  a  negative,  for  this  is  not  to  prove  a 
mere  negative,  but  to  prove  an  actual  relation  in  point  of  magnitude 
or  value.  Hence  upon  an  issue,  whether  land  assigned  for  payment 
of  a  legacy  was  deficient  in  value,  it  was  held  that  the  party  who 
alleged  that  it  was  deficient  was  forced  to  prove  it.^ 

It  is  to  be  observed,  concerning  these  positions,  that  the  rule 
that  the  party  who  alleges  the  affirmative  is  bound  to  prove  it  is  not 
correct  in  principle,  unless  by  alleging  the  affirmative  is  to  be  under- 
stood the  allegation  of  any  new  matter  or  relation,  the  truth  of  which 
is  essential  to  the  allegant's  case.  If  affirmative  merely  meant 
affirmative  in  form,  the  eff"ect  would  frequently  be*  directly  at  vari- 
ance with  the  clear  principles  just  adverted  to.  The  rule  of  the  civil 
law  indeed  by  its  latter  branch,  negantis  aufem  proprie  7iulla  est  pro- 
batio,  seems  as  if  it  had  been  intended  to  show  the  principle  on  which 
the  onus  prohandi  is  thrown  on  the  affirmant,  as  though  the  rule 
were  founded  in  necessity.  This  is  not  true;  the  proof  of  a  negative, 
although  attended  with  inconvenience  and  difficulty,  is  yet  practicable, 
and  although  convenience  may  be  properly  used  as  an  *argu- 
L  -"  ment  for  relieving  from  the  burden  of  a  negative  proof  in 
°  Berty  v.  Dormer,  12  Mod.  526. 

^  If  the  defendant  would  show  matter  in  avoidance,  after  a  prima  facie  case 
has  been  made  out  by  the  plaintiff,  the  burden  of  proof  shifts  upon  him  : 
Gray  Y.  Gardner,  17  Mass.  188  ;  Attlehorough  v.  Middlehorongh,  10  Pick.  378; 
Davis  V.  Jenney,  1  Met.  221 ;  Poivers  v.  Russell,  13  Pick.  69  ;  McGregory  v.  Pres- 
cott,  5  Cush.  07  ;  Zerbe  v.  Miller,  4  Harris  488 ;  Yarnell  v.  Anderson,  14  Mo. 
619;  Burrelly,  Snell,  5  Fos.  474;  Brown  v.  Woodbury,  5  Ind.  254;  Seavey  v. 
Dearborn,  19  N.  11.  351.  A  party  setting  up  the  statute  of  limitations  as  a  bar 
to  a  claim  of  property,  has  the  burden  of  showing  an  adverse  possession  in 
himself  during  the  period  required  by  the  statute  :  Stewart  v.  Cheatham,  3 
Yerg.  60;  see  Taylor  v.  Spears,  1  Eng.  381  ;  Dngyan  v.  Cole,  2  Tex.  381. 
Where,  to  avoid  the  operation  of  the  statute  of  limitations,  the  complainant 
relies  upon  the  fraudulent  concealment  of  the  cause  of  action,  the  burden  is 
upon  him  to  prove  such  fraudulent  concealment:  Reeves  v.  Dougherty,  7  Yerg. 
222.  Where  an  article  is  sold,  with  a  warranty  or  a  representation  amounting 
to  a  warranty  as  to  its  quality,  and  in  an  action  by  the  seller  to  recover  the 
price,  the  buyer  relies  upon  a  breach  of  the  warranty  or  the  falsity  of  the  rep- 
resentation, to  reduce  the  amount  of  his  lial)ility,  the  burden  of  proof  is  on 
him  to  show  that  the  quality  of  the  article  does  not  correspond  with  the  war- 
ranty or  representation  :  Dorr  v.  Fisher,  1  Cush.  271.  If  a  party  would  avoid 
the  effect  of  a  promise  made  by  him,  by  insisting  that  it  was  made  in  ignorance 
of  material  facts,  the  burden  rests  upon  him  of  proving  that  he  was  thus 
ignorant  :   Burton  v.  Jilinit,  23  Vt.  151. 


ONUSOF    PROOF.  588 

particular  defined  instances,  it  supplies  no  certain  ground  for  a  gen- 
eral rule. 

It  is  to  be  carefully  remarked,  that  although  as  a  general  rule  the 
law  neither  presumes  liability  or  discharge  from  liability,  nor  any 
fact  or  state  of  things  essential  to  such  liability  or  discharge,  not 
established  by  competent  means,  the  law  does  not,  in  the  absence  of 
proof  of  a  negative  where  it  is  material  to  a  right, *^  assume  the 
affirmative  to  be  true :  it  is,  on  the  contrary,  frequently  essential  to 
the  establishment  of  right  to  prove  the  negative  of  facts. *^  Thus,  if 
A.  claim  as  heir  at  law  of  B.  his  elder  brother,  it  is  essential  to 
prove,  not  only  the  death  of  B.,  but  that  he  died  without  leaving 
issue ;  till  this  be  proved  his  title  as  heir  is  not  shown,  and  the  nega- 
tive is  not  to  be  presumed,  as  the  law  will  not,  from  the  mere  absence 
of  evidence,  infer  or  assume  that  the  elder  brother  died  Avithout  law- 
ful issue,  as  that  would  be  to  presume  a  state  of  things  to  exist  in 
support  of  the  claimant's  title  ;  that  is,  in  truth,  to  presume  title. 

The  operation  of  this  general  principle  may  be  carried  further. 
It  seems  that  the  law  will  not  infer  the  existence  of  a  state  of  things 
involving  a  negative  from  the  mere  absence  of  evidence  to  prove  the 
affirmative,  even  in  a  case  where  such  state  of  things  is  the  same 
with  that  already  admitted  to  exist,  and  where  consequently  some 
presumption  in  its  favor  might  be  made  as  to  its  continuance.  This 
conclusion  seems  to  be  warranted  by  the  general  principle  r^coq-i 
*of  law  just  adverted  to,  but  it  is  also  supported,  if  support 
be  necessary,  by  the  rule  that  every  fact  is  to  be  proved  by  the  best 
evidence  that  the  case  reasonably  admits  of,  and  the  consideration 
that  actual  evidence  of  the  state  of  things,  at  any  point  of  time,  must 
usually  be  more  satisfactory  than  a  mere  negative  inference  that  no 
change  has  occurred,  because  none  is  proved  to  have  occurred. 

Although  the  general  principles  may  require  proof  of  a  nega- 
tive in  the  sense  explained,  they  relieve  from  proof  of  the  negative 
of  any  matter,  where  the  existence  of  the  affirmative  is  essential  to 

^  Or  .1  discharge ;  thus,  in  an  action  on  a  policy  of  insurance,  the  defence  to 
which  is  the  non-communication  of  a  material  fact,  it  is  not  sufficient  for  the 
defendant  to  prove  the  existence  and  knowledge  of  the  plaintiff  of  that  fact,  but 
he  must  give  some  evidence  that  it  was  not  communicated  to  him  :  EJkiii  v. 
Janson,  13  M,  &  AV.  655. 

^  Thus,  in  ejectment  on  a  forfeiture  alleged  to  have  been  incurred  by  breach 
of  a  covenant  to  insure  in  some  office  in  or  near  London,  some  proof  of  the  omis- 
sion to  insure  must  be  given  by  the  plaintiff,  and  a  refusal  to  produce  the  receipt 
for  the  premium  is  not  sufficient:  Doc  dem.  Bridger  v.  Whitehead,  8  Ad.  &  E. 
(35  E.  C.  L.  R.)  571. 


589  PROOFS. 

exempt  or  discharge  the  adversary  from  some  duty  or  liability 
proved  upon  him  ;  for  the  law,  as  has  been  seen,  will  not  presume 
discharge  from  liability,  nor  any  fact  essential  to  such  discharge, 
and  in  thus  reo-ardino;  the  charge  or  duty  as  continuing  regards  the 
negative  as  true.^ 

This  rule,  thus  strictly  and  directly  deduced  from  the  general 
principle,  is  aided  by  considerations  of  convenience.  Proof  is  ex- 
pected from  the  party  more  likely  than  his  adversary  to  be  cogni- 
sant of  the  fact  and  to  be  possessed  of  the  means  of  proof;  and  it  is 
usually  far  more  easy  for  that  party  to  prove  the  affirmative  than 
for  the  other  to  establish  the  negative.  The  declaration  showing 
how  a  debt  became  due  avers  that  it  has  not  been  paid.  It  is  sufficient 
as  regards  the  evidence,  if  the  plaintiff  prove  the  facts  which  show 
the  defendant's  liability  to  pay  the  debt ;  that  liability  being  proved, 
the  law  requires  the  defendant  to  discharge  himself  by  competent 
proof,  and  in  default  regards  the  negative  as  established.'' 

In  an  action  of  debt  for  sporting  without  a  qualification,  it  was 
sufficient  for  the  plaintiff  to  prove  the  fact  of  sporting,  for  every 
person  was  declared  to  be  liable  to  the  claim,  unless  he  had  a  quali- 

^  So  upon  a  plea  of  set-ofiP,  on  a  bond  conditioned  for  the  payment  by  the 
plaintiff  of  an  annuity  to  a  third  person,  alle^jing  such  non-payment,  the  onus 
jJi'obandi  is  on  the  plaintiff:  Penny  v.  Foy.,  8  B.  &  C.  (15  E.  C.  L.  R.)  11. 

'  Where  a  public  conveyance  is  overturned  or  breaks  down  without  any  appa- 
rent cause,  the  law  will  imply  negligence,  and  the  burden  of  proof  will  be  on 
the  owners  to  rebut  that  legal  presumption  :  Ware  v.  Gay,  11  Pick.  lOG.  Proof 
of  injury  to  a  passenger  on  a  railroad  is  prima  facie  evidence  of  negligence 
which  the  company  must  rebut:  Zemp  v.  Railroad  Co.,  9  Rich.  (Law)  84; 
Terry  v.  Railroad  Co.,  22  Barb.  574.  AVhere  the  plaintiff  alleges  damage,  in 
consequence  of  the  defendant's  negligence  in  driving  on  the  highway,  the  bur- 
den of  proof  is  on  the  plaintiff  to  show  ordinary  cai*e  and  diligence  on  his  own 
part  and  negligence  on  the  part  of  the  defendant:  Lane  v.  Cromhie,  12  Pick.  177  ; 
Tourtillot  v.  Bosebrook,  11  Mete.  460;  Hyde  v.  Jamaica,  1  Williams  443;  Moore 
V.  Central  Railroad  Co.,  4  Zabr.  268 ;  Holbrook  v.  Railroad  Co  ,  2  Kern.  236 ; 
Dyer  v.  Tallcott,  16  111.  300;  Railroad  Co.  v.  Fay,  Ibid.  558;  Griffin  v.  Keio 
York,  5  Sold.  456  ;  Dickey  v.  Telegraph  Co.,  43  Me.  492.  In  an  action  against 
a  city  corporation  for  injuries  sustained  by  the  plaintiff  in  consequence  of  a 
grating  over  a  vault  in  a  sidewalk  giving  way  beneath' him,  it  was  held,  that 
the  plaintiff  was  bound  to  show  affirmatively  that  there  had  been  a  neglect  of 
duty  by  the  corporation  :  McGinity  v.  Neiv  York,  5  Duer  674;  Owings  v.  Jones, 
9  Md.  108.  In  case  against  a  surgeon  for  an  injury  sustained  by  reason  of 
alleged  unskilful  and  careless  treatment,  the  burden  of  proof  is  on  the  plaintiiT 
to  show  a  want  of  proper  knowledge  and  skill ;  but  it  is  not  requisite  to  prove 
it  l)y  evidence  independent  of  and  unconnected  with  the  evidence  of  the  treat- 
iricrit  of  the  case  in  question:  Leighton  v.  Sargent,  11  Fost.  119. 


ONUS    OF     PROOF.  590 

fication,  and  to  presume  one  would  1)e  contrary  *to  the  ffen-    ^   ,„^^ 

•  .  r  5901 

eral  principle.'     Where  the  declaration   states   an  unlawful    *-         -^ 

seizure  of  his  goods  by  the  defendant,  it  is  sufficient  if  the  plaintiff 
show  affirmatively  the  fact  of  seizing  his  goods,  for  the  facts  show 
that  the  defendant  was  amenable,  unless  he  had  lawful  cause  for 
seizure,  and  if  he  show  none,  none  can  be  presumed  for  him''  who 
alleges  and  is  bound  to  prove  the  affirmative.' 

Hence  it  is  a  general  rule  that  the  onus  probandi  lies  upon  the 
party  who  seeks  to  support  his  case  by  a  particular  fact,  of  which 
he  is  supposed  to  be  cognisant.'  A  defendant  cannot  set-off  cash- 
notes  of  the  bankrupt  in  an  action  by  the  assignees,  without  proof 


'  R.  V.  Stone,  1  East  639  ;  Spiers  v.  Parker,  1  T.  R.  144  ;  B.  v.  Jarvis,  1  Burr. 
148  ;  B.  V.  Tmner,  5  M.  &  S.  206 ;  see  Frontine  v.  Frost,  3  B.  &  P.  305 ;  8  Ad. 
&  E.  (35  E.  C.  L.  II.)  575,  576  ;  supra,  n.  (c).  Where  a  party  before  a  justice 
admits  the  trading  as  a  hawker  or  pedlar,  it  is  incumbent  on  him  to  prove  that 
he  had  a  license  :  B.  v.  Smith,  3  Burr.  1475.  So  on  a  charge  of  selling  ale 
without  a  license  :  B.  v.  Hanson,  Paley  on  Conv.  176,  3d  edit.  In  such  a  case 
the  defendant  suffers  not  the  slightest  inconvenience  from  the  general  rule,  for 
he  can  immediately  produce  his  license ;  whereas,  on  the  other  hand,  the  prose- 
cutor would  be  put  to  great  inconvenience ;  per  Abbott,  C.  J.,  Ibid. ;  and  see 
Apothecaries  Company  v.  Bentley,  Ry.  &  M.  (21  E.  C.  L.  R.)  159  ;  where  Abbott, 
C.  J.,  held  that  the  defendant  in  an  action  for  penalties  for  practising  as  an 
apothecary  must  prove  his  qualification. 

''  Aitcheson  v.  Madock,  Peak.  C.  218  ;  and  see  Evans  v.  Birch,  3  Camp.  10. 

'  Per  Ashurst,  J.,  6  T.  R.  57,  post ;  B.  v.  Turner,  5  M.  &  S.  21 1  ;  per  Holroyd, 
J.,  in  B.  V.  Burdett,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  140  ;  Catherwoodv.  Chabaud,  1 
B.  &  C.  (8  E.  C.  L.  R.)  150  ;  see  Booth  v.  Millns,  15  M.  &  W.  669.  On  a  question 
whether  a  lease  granted  by  a  tenant  for  life,  under  a  power  to  grant  leases,  con- 
tained a  reservation  equal  to  or  greater  than  that  in  a  pattern  lease  produced, 
in  an  action  of  ejectment  by  the  remainderman,  it  is  incumbent  on  the  party 
who  claims  under  the  lease  to  prove  the  fact :  Doe  v.  Grazebrooke,  4  Q.  B.  (45 
E.  C.  L.  R.)  406. 

'  In  an  indictment  for  keeping  a  ferry  without  license,  the  burden  is  upon  the 
defendant  to  show  that  he  has  a  license,  without  the  State's  offering  any  evi- 
dence to  show  the  contrary  :  Wheat  v.  The  State,  6  Mo.  455.  In  a  qui  tarn  action 
against  a  clerk,  for  issuing  a  license  to  marry  a  female  under  age,  without  the 
consent  of  the  parent  or  guardian,  the  plaintiff  is  not  bound  to  prove  the  nega- 
tive averments,  that  such  consent  was  not  given.  The  record  of  the  fact  would 
be  prima  facie  evidence  of  it,  and  being  in  the  possession  of  the  clerk,  it  is  his 
duty  to  produce  it,  without  any  evidence  by  the  plaintiff  to  support  his  defence  : 
Blann  v.  Beat,  5  Ala.  357.  So,  in  a  similar  action  to  recover  a  statute  penalty 
for  marrying  minors  without  the  consent  of  their  parents  or  guardians,  the 
burden  is  on  the  defendant  to  show  such  consent :  Medlack  v.  Brown,  4  Mo. 
379. 


590  PROOFS. 

that  they  came  into  his  possession  before  the  bankruptcy."     A  party 
who  pleads  infancy"  or  coverture  must  prove  it." 

*To  a  plea  of  infancy  the  plaintiff  replied  a  promise  after 
L  -I  the  defendant  had  attained  his  age ;  and  it  was  held  to  be 
sufficient  for  the  plaintiff  to  prove  a  promise,  and  that  it  lay  on  the 
defendant  to  prove  that  he  was  not  of  age.^ 

In  an  action  on  a  policy  of  insurance  on  goods,  the  plaintiff  having 
proved  a  barratrous  act  on  the  part  of  the  master,  it  was  objected 
that  it  was  incumbent  on  him  also  to  prove  that  the  master  was  not 
the  owner  or  freighter ;  but  it  was  held  that  proof  of  the  affirmative, 
if  it  were  true,  lay  on  the  defendant. "^ 

There  are,  however,  certain  presumptions  which  the  law  makes  rela- 
tively to  particular  things  and  circumstances,  which  throw  the  onus 
of  proof  very  frequently  upon  the  party  who,  but  for  the  presumption, 
would  not  be  required  to  sustain  it.  This  is  the  result  of  that  maxim 
of  our  law,  Stabitur  prcesumjjtioni  donee  probetur  in  contrarium,  and 
hence  in  general,  whenever  the  law  presumes  the  affirmative,  it  lies 
on  the  party  who  denies  the  fact  to  prove  the  negative ;'"  and  it  is  suffi- 
cient to  prove  a  fact  from  Avhich  the  rest  of  the  affirmative  allegation, 
in  the  absence  of  any  other  evidence,  is  a  presumable  consequence  : 
thus,  for  example,  if  the  defendant  by  his  plea  allege  that  there  was 
no  *consideration  for  a  bill  of  exchange  or  promissory  note 
L  *^-'  on  which  an  action  is  brought,  the  onus  probajidi  lies  on 
him,  for  the  law  presumes  'prima  facie  that  there  was  a  good  consid- 

^  Dichson  v.  Evans,  6  T.  R.  57. 

°  Berty  v.  Dormer,  12  Mod.  526  ;  R.  v.  Txmier,  5  M.  &  S.  206. 

0  Cannam  v.  Farmer,  2  Car.  &  K.  (61  E.  C.  L.  R.)  746 ;  3  Ex.  698. 

P  Bortluvick  v.  Carruthers,  1  T.  R.  648  ;  and  so  ruled  by  Holroyd,  J.,  in  Bates 
V.  Wells,  Lane.  Sp.  Ass.  1822;  Hartley  v.  Wharton,  11  A.  &  E.  (39  E.  C.  L.  R.) 
934.  Where  the  party  charged  Avith  bigamy  was  an  infant  at  the  time  of  the 
first  marriage,  which  was  by  license,  and  the  register  did  not  state  any  con- 
sent by  parents  and  guardians,  it  was  held  that  some  evidence  of  consent 
should  be  given  on  the  part  of  the  prosecution  :  Butler^ s  case,  Russ  &  Ry.  Cr. 
C.  61. 

"  Ross  V.  Hunter,  4  T.  R.  33. 
.  '  Gilb.  Law  of  Ev.  148,  cited  by  Lord  Ellcnborough,  1  East  200.  In  an 
action  by  A.  against  B.  for  injury  to  a  reversion  of  a  copyhold  estate,  ^.'s  re- 
version being  put  in  issue  by  the  pleadings,  evidence  was  given  of  receipt  of 
rent  by  him  from  the  tenant  in  possession,  and  B.  proved  a  surrender  of  the 
estate  in  question,  twenty-one  years  before  the  receipt  of  such  rent  by  A., 
to  a  stranger.  This  evidence  did  not  throw  the  burden  upon  A.  of  proving 
a  reconveyance  afterwards  of  such  estate  to  him,  Daintree  v.  Brocklehurst,  3 
Ex.  207. 


ONUS  or  PROOF — LEGAL  PRESUMPTION.       592 

eration.^     If,  however,  the  defendant,  in  an  action  on  a  bill  or  note, 
proves'  it  to  have  been  fraudulent  or  *illegal  in  its  inception, 
the  law  then  presumes  that  it  will  be  transferred  without    ■-         -" 
consideration  ;  thus  the  burthen  of  proof  is  transferred  to  the  endorsee." 

'  Lacey  v.  Forrester,  2  C,  M.  &  11.  59  ;  and  see  Percival  v.  Frampfon,  2  C, 
M.  &  R.  180 ;  Mills  V.  Odd;/,  6  C.  &  P.  (25  E.  C.  L.  R.)  728  ;  Easfonv.  Pratchett, 
1  C,  M.  &  R.  798  ;  Mills  v.  Barber,  1  M.  &  W.  427  ;  Smith  v.  Martin,  9  M.  & 
W.  304. 

Assumpsit  by  the  endorsee  ai^ainst  the  acceptor  of  a  hill ;  plea,  that  it  was  ac- 
cepted for  the  accommodation  of  the  drawer,  and  that  he  endorsed  it  to  another 
party  without  consideration,  who  endorsed  to  the  phiintiff  without  consideration  ; 
replication,  de  injuria ;  it  lies  on  the  defendant  to  show  that  no  consideration 
was  given  by  the  plaintiff:  Brown  v.  Philpot,  2  M.  &  Rob.  255. 

*  It  has  been  said  that  this  presumption  must  be  founded  on  proof  and  does 
not  arise  by  inference  from  facts  alleged  and  not  denied  by  the  pleadings:  thus, 
in  the  case  of  Edmonds  v.  Groves,  2  M.  &  W.  642,  which  was  an  action  by  the 
endorsee  against  the  maker  of  a  promissory  note,  the  defendant  pleaded  that 
the  consideration  for  the  note  was  money  lost  at  gaming,  that  it  was  endorsed 
to  the  plaintiff  with  notice,  and  without  consideration  for  the  endorsement^ 
The  plaintiff  replied  that  the  note  was  endorsed  to  him  without  notice,  and  for 
a  valuable  consideration.  At  the  trial,  each  party  declining  to  give  any  evi- 
dence. Lord  Abinger  directed  a  verdict  for  the  plaintiff,  giving  the  defendant 
liberty  to  move  to  enter  a  nonsuit.  A  motion  was  made  on  the  ground  that  the 
replication  admitted  the  original  defect  of  consideration,  and  that  therefore  the 
o/r»,?was  thrown  on  the  plaintiff.  Lord  Abinger  held,  that  as  the  fact  of  notice 
of  the  gaming  transaction  was  involved  in  the  issue,  it  was  at  all  events  incum- 
bent on  the  defendant  to  prove  that  fact,  in  order  to  call  on  the  plaintiff  for 
proof  of  a  new  consideration.  He  declined  to  give  any  opinion  upon  the  effect 
of  an  admission  on  the  record  upon  the  ohms  prohandi  of  an  issue  already 
joined.  Alderson,  B.,  said  that  "an  admission  on  the  record  is  merely  a  waiver 
of  requiring  proof  of  those  facts  which  are  not  denied,  the  party  being  content 
to  rest  his  claim  on  other  facts  in  dispute ;  but  if  any  inferences  are  to  be  drawn 
by  the  jury,  they  must  have  the  facts  proved  like  any  others."  In  the  above 
case,  if  the  plaintiff  took  the  note  with  notice  of  the  original  vice,  as  the 
defendant  alleged,  and  seems  clearly  to  have  been  bound  to  prove,  no  title  could 
be  gained,  and  consequently  there  could  be  no  question  as  to  any  new  con- 
sideration ;  and  see  Bennion  v.  Davison,  3  M.  &  W.  179 ;  per  cur.  9  M.  &  W. 
304.  But  in  Bingham  v.  Stanley,  2  Q.  B.  (42  E.  C.  L.  R.)  117  ;  the  court  held 
that  the  implied  admission  upon  the  record  of  fraud,  or  illegality  in  the 
inception  of  the  bill  or  note,  was  sufficient  to  require  the  endorsee  to  prove 
consideration  ;  and  see  per  Alderson,  B.,  13  M.  &  W.  144;  also  post,  tit.  Pre- 
sumptions. 

°  Bailey  v.  Bidivell,  13  M.  &  W.  73.  But  there  is  no  such  presumption  either 
that  it  was  taken  with  notice,  or  after  maturity  ;  thus,  in  an  action  by  a  third 
endorsee  against  the  maker  of  a  note,  the  plea  alleged  an  action  by  the  second 
endorsee,  a  reference  under  an  order  of  Nisi  Prius,  and  a  fraudulent  transfer  to 
the  plaintiff  pending  the  reference,  the  plaintiff  having  knowledge  of  the  fraud ; 
issue  being  taken  on  the  fact  of  such  knowledge,  the  defendant  was  directed  to 


593  PROOFS. 

So  Avhere  the  law  raises  a  presumption  as  to  the  continuance  of  life;" 
the  legitimacy  of  children  born  in  wedlock  '/  the  satisfaction  of  a 
debt,^  the  onus  is  created  of  rebutting  it  in  the  first  instance.^ 

Wliere  the  negative  involves  a  criminal  omission  bj  the  party,  and 
consequently  where  the  law,  by  virtue  of  the  general  principle,  pre- 
sumes his  innocence,  the  affirmative  of  the  fact  is  also  presumed.^ 

And  therefore  upon  an  information  against  Lord  Halifax  for 
refusing  to  deliver  up  the  rolls  of  the  Auditor  of  the  Exchequer,  the 
Court  of  Exchequer  put  the  plaintiff  upon  proof  of  the  negative." 
In  an  action  for  putting  combustible  matter  on  board  the  plaintiff's 
ship,  without  giving  notice  of  its  contents,  whereby  the  ship  was 
destroyed,  it  was  held  that  the  plaintiff  was  bound  to  prove  a  negative 
which  was  essential  to  his  case,  viz.,  the  want  of  notice.**  Thus,  also, 
in  a  suit  for  tithes  in  the  Spiritual  Court,  where  the  defendant  had 
pleaded  that  the  plaintiff  had  not  read  the  Thirty-nine  Articles,  the 

court   required   the  defendant  *to  prove  the  negative. "^     So 

r*5941    •  •  •  •      • 

•-         -'in    Tlie  King  v.  Hawkins,   where   the  objection,   upon  an 

information  in  the  nature  of  a  quo  warranto,  was,  that  the  defendant 

had  not  taken  the  sacrament  within  a  year,  the  court  held  that  the 

presumption    was    that    he    had    conformed    to   the  law.^     Where  a 

begin  and  prove  such  knowledge :  Smith  v.  Martin,  1  Dowl.  N.  S.  418  ;  9  M.  & 
W.  304 ;  May  v.  Chapman,  16  M.  &  W.  355. 

='  Doe  v.  Nejyean,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  86 ;  tit.  Death,  Pedigree. 

y  Vol.  II.,  tit.  Bastardy. 

'  Vol.  II.,  tit.  Payment. 

»  B.  N.  P.  298. 

*"  Williams  v.  The  East  India  Company,  3  East  192. 

•=  Monke  v.  Butler,  1  Roll  R.  83  ;  see  also  R.  v.  Rogers,  2  Camp.  654 ;  Poivel 
V.  Milhank,  2  W.  Bl.  R.  851  ;  Lord  Halifax's  case,  B.  N.  P.  298  ;  R.  v.  Coombs, 
Comb.  57. 

^  10  East  211,  and  per  Bayley,  J.,  R.  v.  Twyning,  2  B.  &  Aid.  388.  Upon  an 
indictment  under  42  Geo.  III.  c.  107,  s.  1  (now  repealed  by  7  &  8  Geo.  IV.  c. 
27,  see  c.  29),  which  makes  it  felony  to  course  deer  in  any  enclosed  ground 
without  the  consent  of  the  owner,  it  was  held  that  it  was  necessary  to  prove 

^  Where  a  marriage  de  facto  is  proved,  the  presumption  is  that  the  marriage 
was  conducted  according  to  law  and  the  burden  of  proof  is  on  the  party  denying 
it:  Raynham  v.  Canton,  3  Pick.  393. 

■^  Where  the  plaintiff  in  ejectment  claims  the  right  to  enter  upon  lands  for 
the  breach  of  a  condition  subsequent,  the  burden  is  upon  him  to  prove  the 
breach,  though  a  negative ;  but  in  such  case  slight  proof  would  be  sufficient 
prima  facie:  O' Brien  v.  Doe,  6  Ala.  787.  The  averment  of  neglect  of  official 
duty  must  be  supported  by  some  pi'oof  by  the  party  making  it,  though  very 
little  evidence  will  sufiice  to  shift  the  burden  of  proof:  Dobbs  y.  Justices,  17 
Ga.  024. 


ONUS  OF  PROOF — LEGAL  PRESUMPTION.       594 

woman,  twelve  months  after  licr  husband  had  last  been  heard  of,  mar- 
ried again,  and  the  husband  had  never  afterwards  been  heard  of,  upon 
the  question  as  to  the  settlement  of  the  children  of  the  second  mar- 
riage, the  court  held  that  the  justices  had  done  right  in  presuming 
the  legitimacy  of  the  children,  in  the  absence  of  any  proof,  except 
the  usual  presumption,  that  the  first  husband  was  living  at  the  time 
of  the  second  marriage.® 

So  where  the  question  arises,  in  a  criminal  case,  whether  the 
prisoner's  examination  was  taken  down  in  writing  before  the  magis- 
trate under  the  statute,  it  is  incumbent  on  the  prosecutor  to  give 
negative  evidence  to  show  that  it  was  not  taken  down,  for  otherwise 
it  will  be  presumed  that  the  magistrate  did  his  duty  in  taking  the 
examination  in  writing,  as  the  statute  directs/ 

*\Vherever  also  it  has  been  shown  that  the  case  falls  r^cqs-i 
within  the  scope  of  any  general  principle  or  rule  of  law,  or 
the  provision  of  any  statute,  whether  remedial  or  even  penal, ^  it  then 
lies  on  the  opposite  party  to  show  by  evidence  that  the  case  falls 
Avithin  an  exception  or  proviso. *"  So  it  is  incumbent  on  a  person  who 
alleges  a  particular  status  of  an  individual  to  prove  it ;  thus  it  lies  on 
a  defendant  who  seeks  to  bring  a  plaintiff  within  an  Act,  which,  if 
the  defendant  resided  within  a  particular  district,  subjects  the  plain- 
tiff to  a  nonsuit,  to  prove  his  residence  at  the  time  of  the  action 
brought,  by  particular  evidence  of  the  fact ;  general  evidence  of 
recent  residence  there  is  not  sufficient.' 

the  negative  of  such  consent:  R.  v.  Bogers,  2  Camp.  C.  654;  and  see  B.  v. 
Hazy,  2  Car.  &  P.  (12  E.  C.  L.  R.)  458.  There  the  negative  was  part  of  the 
description  of  the  offence.  In  the  report  of  the  above  case,  it  seems  erroneously 
(see  R.  V.  Allen,  1  Mood.  C.  C.  154)  to  have  been  held  necessary  to  negative 
the  consent  by  the  testimony  of  the  owner  himself.  In  order  to  obviate  the 
necessity  for  any  such  proof,  various  statutes  have  been  provided  that  the  bur- 
then of  proving  consent  or  lawful  excuse,  or  other  like  matter,  shall  be  incumbent 
on  the  defendant.     These  are  too  numerous  to  specify. 

*  R.  v.  TtV'i/ning,  2  B.  &  Aid.  386  ;  and  see  Butler  s  case,  Russ.  &  Ry.  Cr.  C. 
61,  p.  591.  But  see  B.  v.  Earhorne,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  540 ;  and  see 
Settlement. 

^  See  Vol.  II.,  tit.  Admission.  ^  See  supra,  p.  590,  note  (i). 

^  Doe  V.  Bingham,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  672 ;  Doe  v.  Hawthorn,  2  B.  & 
Aid.  101.  Where  a  plaintiff,  for  th«  purpose  of  avoiding  a  conveyance  of  land, 
has  shown  it  to  be  for  a  charitable  use,  it  lies  on  the  defendant  to  bring  himself 
within  the  exception  :  2  B.  &  Aid.  101.  In  this  respect  the  rule  of  evidence  cor- 
responds with  the  rule  of  pleading:  12  M.  &  W.  88  ;  16  M.  &  W.  615. 

^  Jones  v.  Kenrick,  8  B.  &  C.  (15  E.  C.  L.  R.)  337;  and  see  Tyrrell  v.  Holt, 
1  Barnard,  3  Geo.  I. ;  Vin.  Ab.  Ev.,  Sa.  7  ;  Bawlins  v.  Desboroiigh,  2  M.  &  Rob. 
70,  ^os^ 


595  PROOFS. 

Upon  an  appeal  against  an  order  of  removal  it  is  incumbent  on 
the  respondents  to  prove  their  case,  by  establishing  a  settlement  in 
the  appellant's  parish.  Upon  an  appeal  against  a  poor's-rate,  on 
the  ground  that  the  appellant  has  no  rateable  property  within  the 
parish,  the  onus  is  on  the  respondents  to  prove  that  he  has  such 
property''  there  ;  but  if  the  appellant  object  merely  to  the  quantum 
of  the  rate,  be  is  to  prove  the  inequality  of  such  rate.'  Upon  an 
appeal  against  an  order  of  bastardy,  the  respondents  must  begin.™ 

The  discussion  of  the  question  of  the  onus  of  proof  naturally 
leads  us  to  the  consideration  of  a  question  Avbich  seems  formerly  to 
have  been  regarded  as  identical  Avith  it:  viz.,  the  right  to  begin." 
r+'^Qfil  "^^®  decisions  upon  this  ^subject  have  been  numerous  and 
conflicting,  and  it  is  certainly  difficult  to  lay  down  rules  for 
guidance  in  all  cases.  The  older  decisions,  however,  though  no 
longer  recognized  as  authorities  upon  the  practice  in  this  respect, 
are  not  unworthy  of  note,  as  affording  the  means  of  determining  the 
duties  of  the  parties  with  reference  to  proof.  Formerly,  it  seems 
to  have  been  considered  that  the  defendant  was  in  all  cases  entitled 
to  begin,  where  the  0)ius  'probandi  lay  upon  him,  notwithstanding 
the  technical  form  of  the  pleadings,  and  although  the  proof  of  the 

"■  4  T.  R.  475.  1  Ibid. . 

"  li.  V.  Knill,  12  East  50. 

"  The  question  who  shall  begin  is  not  merely  material  as  a  rule  of  form  and 
order,  but  as  regulating  the  right  to  reply.  It  is  considered  in  practice,  and 
perhaps  with  reason,  that  it  gives  a  party  an  advantage  to  have  the  opening  and 
reply,  for  the  purpose  of  having  the  first  and  also  the  latest  opportunity  of 
making  an  impression  on  the  jury.  Much  evidence,  no  doubt,  is  often  sacrificed 
to  obviate  or  attain  this  advantage ;  for  a  defendant  is  in  general  disinclined  to 
give  the  opportunity  for  a  reply  which  may  disturb  the  arguments  which  he  has 
used,  and  also  because  he  may  frequently  doubt  whether  he  can  sufficiently  de- 
pend on  the  evidence  which  he  is  required  to  state  to  the  jury,  without  having 
any  opportunity  of  afterwards  commenting  on  variances  between  the  facts  as 
stated  and  proved.  Notwithstanding  the  importance  of  the  question,  whether 
the  one  party  or  the  other  has  the  right  to  begin,  the  decision  of  the  point  rests, 
in  the  first  instance,  with  the  Judge  at  Nisi  Prius,  and  the  Court  above  has  re- 
fused, without  good  reason,  to  interfere  with  his  decision  ;  see  Phil,  on  Ev.,  vol. 
i.  833 ;  Hare  v.  Munn,  M.  &  M.  (22  E.  C.  L.  R.)  241  ;  Fowles  v.  Coster,  Ibid. ; 
Burrell  v.  Nicholson,  6  C.  &  P.  (25  E.  C.  L.  R.)  202  ;  1  M.  &  Rob.  304  ;  Williams 
V.  Davies,  1  Cr.  &  M.  464  ;  Scott  v.  Letvis,  7  0.  &  P.  (32  E.  C.  L.  R.)  347  ;  Brand- 
ford  v.  Freeman,  5  Ex.  734 ;  Edimrds  v.  Matthews,  16  L.  J.,  Ex.  291.  But  if 
his  decision  has  done  clear  and  manifest  wrong,  [Uuckman  v.  Fernie,  3  M.  &  W. 
517,  corrected  5  Ex.  737  ;  Geuch  v.  lugall,  14  M.  &  W.  95),  or  some  substantial 
inconvenience  aflecting  the  trial  of  the  issue  has  been  sustained,  the  Court  will 
grant  a  new  trial :  Ashbij  v.  Bates,  15  M.  &  W.  589  •,  Doe  dein.  Bather  v.  Brayne, 
5C.  B.  (57  E.  C.  L.  R.)  655. 


ONUS     OF    PROOF  —  THE    RIGHT    TO     BEGIN.  596 

amount  of  his  damages  lay  upon  the  plaintiif."  Thus,  where  in 
action  of  trespass  quare  clausum  fregit,  the  defendant  as  to  the  force 
and  arms  and  whatever  is  against  the  peace,  &c.,  pleaded  not  guilty; 
and  as  to  the  residue,  a  justification  under  a  right  of  way,  the  de- 
fendant was  held  to  be  *entitled  to  begin  and  to  reply. ^  So  r^-.rqjn 
in  an  action  for  a  libel,  where  the  only  pleas  alleging  facts  in 
justification,  on  which  issues  were  joined  ;'^  or  in  trespass,  where  the 
only  plea  consisted  of  matter  of  justification,  alleging  an  act  of  bank- 
ruptcy to  have  been  committed  by  the  plaintiff,  on  which  issue  was 
joined." 

A  different  rule  has  since  been  stated  as  a  resolution  of  the 
judges.  In  one  report,^  Tindal,  L.  C.  J.,  is  stated  *to  have  r^rqon 
expressed  himself  as  follows  :   "  The  judges  have  come  to  a 

•  Doe  V.  Letcis,  1  C.  &  K.  (47  E.  C.  L.  R.)  122. 

P  Jackson  v.  Hesketh,  2  Stark.  C.  (3  E.  C.  L.  R.)  520  ;  per  Wood,  B.,  and  Bay- 
ley,  J. ;  the  general  issue  had  been  pleaded  originally,  but  had  been  withdrawn 
during  the  assizes  (the  cause  was  in  the  county  palatine  court),  for  the  purpose 
of  giving  the  defendant's  counsel  a  right  to  reply.  So  in  Hodges  v.  Holder, 
3  Camp.  C.  366.  And  these  decisions  do  not  appear  to  be  affected  by  the  new 
rule  mentioned  below,  substantial  damages  not  being  sought :  see  Bastard  v. 
Sjnith,  2  M.  &  Rob.  129. 

1  Cooper  V.  Wakely,  Moo.  &  M.  (22  E.  C.  L.  R.)  248.  So  in  Bedell  v.  Eussell, 
R.  &  M.  (21  E.  C.  L.  R.)  293 ;  where,  to  an  action  of  battery,  the  defendant 
justified  as  captain  of  a  ship  in  which  the  plaintiff  was  mariner,  and  issue  being 
joined  on  the  replication  de  injuria,  it  was  held  that  the  defendant  was  entitled 
to  begin. 

■■  Cotton  V.  James,  Moo.  &  M.  (22  E.  C.  L.  R.)  273  ;  3  C.  &  P.  (14  E.  C.  L.  R.) 
605. 

^  Carter  v.  Jones,  5  C.  &  P.  (24  E.  C.  L.  R.)  641.  The  history  of  this  resolu- 
tion is  thus  given  by  Lord  Denman,  C.  J.,  in  Mercer  v.  Whall,  5  Q.  B.  (48  E. 
C.  L.  R.  )  447: — "  Soon  after  I  was  raised  to  the  bench  this  ruling  [i.  e.  Lord 
Tenterden's,  in  Cooper  v.  Wakley),  became  the  subject  of  discussion  among  the 
judges.  Many  of  them  attended  at  my  house  to  consider  it;  and  the  following 
short  resolution  was  drawn  up  and  signed  by  those  present,  and  afterwards 
adopted  by  Lord  Lyndhurst,  C.  B.,  Bayley,  B.,  Taunton,  J.,  and  myself:  'In 
actions  for  libel,  slander,  and  injuries  to  the  person,  the  plaintiff  shall  begin, 
although  the  affirmative  issue  is  on  the  defendant.'  I  possess  this  document, 
signed  with  the  initials  of  the  present  C.  J.  of  the  C.  P.  (Tindal),  of  Sir  J.  B. 
Bosanquet,  and  of  the  late  Mr.  J.  Park,  Littledale  and  Gazelee,  Js.,  Bollard 
and  Gurney,  Bs.  Among  the  judges  who  adhered  to  this  retractation  of  the 
decision  in  Cooper  v.  Wakley,  were  the  two  whom  I  have  named  as  assessors  to 
Lord  Tenterden  when  that  decision  was  made  (Bayley  and  Littledale,  Js.). 
His  own  opinion  may  be  gathered  from  what  he  said  in  Cotton  v.  James,  Moo. 
&  M.  (22  E.  C.  L.  R.)  273.  If  ever  a  decision  was  overruled  on  great  delibera- 
tion, and  by  an  undeviating  practice  afterwards,  it  is  that  in  Cooper  v.  Wakley.'''' 
But  the  rule  thus  declared  was  confined  to  the  case  under  consideration.     Con- 


598  PROOFS. 

resolution,  that  justice  would  be  better  administered  by  altering  tlie 
rule  of  practice,  and  that  in  future  the  plaintiff  should  begin  in  all 
actions  for  personal  injuries,  and  also  in  actions  for  libel  and  slander, 
notwithstanding  the  general  issue  may  not  be  pleaded,  and  the 
aflSrmative  be  on  the  defendant.  It  is  most  reasonable  that  the 
plaintiff  who  brings  his  case  into  Court,  should  be  heard  first,  to  es- 
tablish his  complaint."' 

This  rule  was  at  first  deemed  to  be  confined  to  actions  for  per- 
sonal or  malicious  injuries,"  such  as  assaults,  libel  and  slander,''  ma- 
licious prosecution,  and  the  like ;''  and  it  was  not  considered  to  be 
sufficient  in  other  actions,  to  bring  a  case  within  the  rule  that  the 
amount  claimed  should  be  unliquidated,^  as  in  an  action  of  covenant  or 
P^rQQ-i  assumpsit  to  recover  damages  for  a  breach  of  contract,^  *or  of 
trespass  to  land  or  goods, ^  or  in  an  action  of  trover,**  or  case." 

tented  with  the  correction  of  an  error,  the  judges  left  the  practice  in  actions  of 
contract  in  its  former  state :  Ibid. 

*  In  the  report  of  the  same  case,  in  1  M.  &  Rob.  281,  the  rule  is  stated  thus  : 
"  A  resolution  has  lately  been  come  to  by  all  the  judges,  that  in  case  of  slander, 
libel,  and  other  actions  where  the  plaintiff  seeks  to  recover  actual  damages  of 
an  unascertained  amount,  he  is  entitled  to  begin,  although  the  affirmative  of 
the  issue  may,  in  point  of  form,  be  with  the  defendant." 

"  In  Wooton  v.  Barton,  1  M.  &  Rob.  18,  Pai-ke,  B.,  said  that  the  only  rule 
laid  down  by  the  judges  was,  that  in  actions  for  personal  injuries  where 
damages  are  sought,  as  in  actions  of  assault,  libel  and  slander,  the  plaintiff 
should  begin.  Thus,  in  an  action  on  a  covenant  for  payment  of  money  (  Wooton 
V.  Barton),  or  on  a  bill  or  note  [Cannuni  v.  Farmer,  3  Ex.  698),  where  interest 
is  only  sought  to  be  recovered  as  damages.  But  the  case  is  different,  if  money 
has  been  paid  into  court,  and  there  is  an  issue  that  the  plaintiff  has  sustained 
greater  damages:  Cri.pps  v.  Yates,  Car.  &  M.  (41  E.  C.  L.  R.)  489  ;  Booth  v. 
Millns,  15  M.  &  W.  669;  and  see  Reeve  v.  UnderUll,  6  C.  &  P.  (25  E.  C.  L.  R.) 
773. 

"  Wooton  v.  Barton.  Even  when  the  defendant  suffered  judgment  by  default 
as  to  part,  and  pleaded  affimatively  to  the  I'esidue :  Wood  v.  Pringle,  1  M.  & 
Rob.  277. 

'  Atkinson  v.  Warne,  6  C.  &  P.  (25  E.  C.  L.  R.)  687. 

y  Reeve  v.  Underhill,  6  C.  &  P.  (25  E.  C.  L.  R.)  773  ;  Lewis  v.  Wells,  7  C.  & 
P.  (32  E.  C.  L.  R.)  221 ;  Wooton  v.  Barton,  1  M.  &  Rob.  518. 

'■  Reeve  v.  Underhill,  6  C.  &  P.  (25  E.  C.  L.  R.)  773  ;  Lewis  v.  Wells,  7  C.  & 
P.  (32  E.  C.  L.  R.)  221. 

»  Burrell  v.  Nicholson,  6  C.  &  P.  (25  E.  C.  L.  R.)  202. 

»>  See  Scott  v.  Letois,  7  C.  &  P.  (32  E.  C.  L.  R.)  347. 

•  Chapman  v.  Emden,  9  C.  &  P.  (38  E.  C.  L.  R.)  712.  For  selling  envelopes, 
&c.,  in  imitation  of  those  used  by  the  plaintiff;  plea,  that  those  sold  by  the 
plaintiff  were  of  an  inferior  kind.  On  issue  joined  on  the  replication  of  de 
injuria  tlie  defendant  was  held  to  be  entitled  to  begin  :  Rowland  v.  Bcrnes,  1  C. 
&  K.  (47  E.  C.  L.  R.)  46. 


RIGHT     TO     BEGIN.  599 

But  in  one  instance  the  rule  was  held  to  apply  to  an  action  for 
breach  of  promise  of  marriage/  an  action  of  contract  in  substance 
as  well  as  in  form  ;  and  also  to  an  issue  taken  on  a  plea  in  abate- 
ment.® 

And  now  it  seems  to  be  settled  that  the  rule  is  the  same  in  actions 
of  contract  and  in  actions  of  tort/  and  that  wherever  the  amount 
which  the  plaintiff  is  entitled  to  recover  is  really  in  question,  he  is 
entitled  to  begin.*^  Therefore,  in  an  action  of  covenant,  by  an  ar- 
ticled clerk  against  an  attorney  for  dismissing  him,  the  defendant 
having  pleaded  that  the  plaintiff  conspired  with  another  attorney,  by 
unlawful  means  to  induce  the  defendant's  client  to  leave  him  and 
employ  the  other,  and  in  pursuance  of  that  conspiracy  *dis-  r*oAA-| 
closed  tiie  defendant's  professional  secrets  to  the  other,  and 
calumniated  the  defendant  to  his  clients,  whereby  he  was  forced  to 
discharge  the  plaintiff,  and  the  plaintiff  had  traversed  the  whole  plea, 
Avhereupon  issue  was  joined;  it  was  held  that  the  plaintiff  was  en- 
titled to  begin,  for  the  amount  of  damages  was  open.*" 

So  in  assumpsit,  on  an  agreement  to  take  the  plaintiff's  son  as  a 
pupil  and  assistant  in  the  defendant's  profession  of  a  surgeon,  the 
grievance  alleged  being  a  wrongful  dismissal  for  misconduct,  the 
plaintiff  on  issue  taken  on  a  plea  affirmatively  alleging  the  miscon- 
duct is  entitled  to  begin.'     So  in  an  action  on  a  charter-party,  where 

^  Harrison  v.  Gotdd,  7  C.  &  P.  (32  E.  C.  L.  R.)  580 ;  Feeve  v.  Underhill,  6  C. 
&  P.  (25  E.  C.  L.  11.)  773.  But  in  Stanton  v.  Paton,  1  C.  &  K.  (47  E.  C.  L.  R.) 
148,  upon  an  issue  joined,  on  a  plea  in  assumpsit  for  breach  of  promise  of 
marriai^e,  that  the  parties  mutually  released  each  other,  Lord  Abinger,  C.  B., 
after  consulting  Patteson,  J.,  held  that  the  defendant  was  entitled  to  begin. 

^  See  Vol.  II.,  tit.  Abatement  ;  Morris  v.  L'otan,  I  M.  &  Rob.  233.  In  Fowler 
V.  Coster,  M.  &  M.  (22  E.  C.  L.  R.)  241  ;  and  3  C.  &  P.  (14  E.  C.  L.  R.)  4G3  ; 
Lord  Tenterden  held,  that  wherever  it  appears  on  the  record  or  from  the  state- 
ment of  counsel  that  there  is  no  real  dispute  as  to  the  sum  to  be  recovered,  but 
the  damages  are  either  nominal  or  mere  matter  of  computation,  then  if  the 
affirmative  of  the  issue  is  on  the  defendant,  he  is  entitled  to  begin  ;  where,  there- 
fore, to  an  action  on  bills  of  exchange  there  was  a  plea  in  abatement  of  the  non- 
joinder of  others,  it  was  held  that  the  defendant  ought  to  begin  ;  and  in  assump- 
sit for  goods  sold,  plea  the  non-joinder  of  another  defendant,  Alderson  B., 
held,  that  if  the  defendant  would  admit  the  debt,  he  was  entitled  to  begin:  £on- 
Jield  v.  Smith,  2  M.  &  Rob.  519. 

'  Mercer  v.  Whall,  5  Q.  B.  (48  E.  C.  L.  R.)  447. 

8  Hoggett  v.  Exleg,  9  Car.  &  P.  (38  E.  C.  L.  R.)  324  ;  2  M.  &  Rob.  251.  Thus 
in  assumpsit  with  a  general  plea  of  set-off,  the  plaintifi"  must  begin,  and  prove 
the  amount  due. 

"  Mercer  v.  Whall,  5  Q.  B.  (48  E.  C.  L.  R.)  447. 

'  Wise  V.  Wilson,  1  C.  &  K.  (47  E.  C.  L.  R.)  662. 
36 


600  PROOFS. 

the  issue  was  whether  the  defendant  had  furnished  a  sufficient  cargo, 
and  the  plaintiff  after  notice  had  refused  to  receive  the  cargo  offered, 
the  plaintiff  was  held  to  be  entitled  to  begin,  as  he  was  to  prove  the 
amount  of  his  damages.'' 

If,  too,  there  be  any  issue  upon  the  record  which  it  would  be  incum- 
bent on  the  plaintiff  to  support  by  evidence,  however  minute  may  be 
the  portion  of  the  case  to  which  it  extends,"*  if  he  be  really  proceeding 
and  intend  to  found  a  claim  upon  it,  he  is  entitled  to  begin.  Thus, 
where  any  part  of  his  claim  is  met  by  the  general  issue,  he  has  a  right 
to  begin. ^  And  indeed  wherever  any  material  allegation  in  the  decla- 
ration, though  in  form  negative  yet  in  substance  affirmative,"  is  denied 
by  the  defendant,  the  plaintiff  must  begin.  Thus,  in  assumpsit,  for 
r*fi()11  ^^^^  delivering  hay  of  a  certain  quality  ;  plea,  that  the  *defend- 
ant  tendered  hay  of  that  quality,  and  that  the  plaintiff  re- 
fused to  receive  it ;  it  was  held,  that  this  being  a  traverse  of  an 
allegation  in  the  declaration,  the  proof  of  the  issue  lay  on  the  plain- 
tiff." So,  in  an  action  on  a  warranty  of  soundness  of  a  horse,  the 
declaration  stating  it  to  be  unsound,  and  the  defendant  by  his  plea 
alleging  it  to  be  sound." 

In  an  action  on  a  policy  of  assurance ;  the  declaration  set  out  the 
policy,  wherein  it  Avas  stipulated  that  if  anything  stated  by  the  assured 
to  the  company,  previously  to  the  execution  of  the  policy,  was  untrue, 
the  policy  should  be  void  ;  and  the  declaration  contained  an  averment 
that  the  statements  so  made  were  true.  The  plea  traversed  the  aver- 
ment of  truth,  "in  this,  that  the  assured  was  afflicted  with  rupture," 
concluding  with  a  verification,  and  the  plaintiffs  replied  de  injurid. 
It  appeared  in  evidence  that  the  assured  made  a  statement  that  he 
had  not  been  afllicted  with  certain  diseases,  including  rupture  ;  it  was 
held  that  the  plaintiffs  were  entitled  to  begin,  and  the  judge  having 

J  lUdjicay  v.  Ewhaiik,  2  M.  &  Rob.  217  ;  and  soe  Hoggett  v.  OxJey,  2  31.  & 
Rob.  251. 

"  Booth  V.  Mains,  15  M.  &  W.  669  ;  Rawlins  v.  Desboroiu/h,  2  M.  &  Rob.  328. 

'  J'rlce  V.  Seaward,  Car.  &  M.  (41  E.  C.  L.  R.)  23.  But  if  the  common  counts 
to  which  the  j:;enenil  issue  is  pleaded  are  merely  added  by  way  of  precaution, 
and  the  plaintiff  will  not  undertake  to  open  a  case  on  them,  they  will  be  no  im- 
pediment to  the  defendant's  ri^ht  to  begin  :  Smart  v.  liayner,  6  Car.  &  V.  (25 
E.  C.  L.  R.)  721. 

™  See  the  test  suggested  by  Alderson,  B.,  ante,  p.  585,  note  (c) ;  and  Amos  v. 
Hughes,  there  cited  ;    Oshorn  v.  Thompson,  2  M.  &  Rob.  254. 

"  Crowleg  v.  J'agc,  7  Car.  .t  l\  (32  E.  C.  L.  R.)  789. 

"  Ouhorn  v.  7'/<njii/>.s,ni.  2  M.  &  Hob.  254. 


RIGHT    TO     BEGIN.  601 

allowed  the  defendant  to  begin,  a  new  trial  was  directed. ^     So  on  an 

issue  to  try  whether  A.  B.  was  at   a  certain  time  of  sound  mind,  the 

plaintiff  who  affirms  the  soundness  may  begin. '^ 

In  replevin,  where  the  defendant  avows  for  rent  in  arrear,  and  the 

plaintiff  pleads  in  bar  that  the  distress  Avas  not  made  within   twenty 

years  from  the  time  when  the  right  to  make  a  distress   accrued,  and 

the  avowant  takes  issue,  the  plaintifl"  must  begin,  as  it  lies  upon   him 

to  prove  when  the  distress  was  made." 

So  the  plaintiflf  has  been  held  to  be  entitled  to  begin  *in 

.  .  .    .  r*602l 

an  action  against  a  builder    on  a  building    agreement,  the    *-       ""^ 

issue  being  whether  it  was  executed  according  to  the  specification.' 
Also  in  covenant  for  not  leaving  in  repair  ;  the  plaintiff  alleging  that 
the  premises  were  dilapidated,  and  the  defendant  that  they  were  not.* 
So  in  covenant  where  the  declaration  stated  that  the  defendant  cove- 
nanted to  occupy  the  demised  premises  in  a  proper  manner  and  to 
keep  them  in  repair,  and  assigned  as  breaches  that  the  defendant  did 
not  occupy  in  a  proper  manner,  and  did  not  keep  the  premises  in  re- 
pair, which  was  traversed." 

But  if  in  an  action  of  trespass,  or  other  like  action  to  try  a  right, 
in  which  the  whole  of  the  pleas  are  in  the  affirmative,  and  the  issues 
raised  by  .them  should  be  sustained  by  the  defendant,  the  defendant 
is  entitled  to  begin;  unless  the  plaintiff's  counsel  will  pledge  himself 
that  he  is  proceeding  for  more  than  nominal  damages.  Thus,  where 
the  action  was  trespass  q.  c.  /.,  and  the  plea  alleged  as  a  justification 
that  the  defendant  committed  the  trespass  in  asserting  a  right,  which 
right  the  plaintiff  traversed ;  the  plaintiff's  counsel  having  claimed 
the  right  to  begin,  the  judge  asked  whether  he  would  undertake  to 
proceed  for  substantial  damages,  and  on  his  declining  to  do  so  allowed 
defendant  to  begin.'' 

P  Ashhy  V.  Bates,  15  M.  &  W.  589.  In  Geach  v.  Ingall,  14  M.  &  W.  95,  the 
Court  decided  the  same  way,  the  only  difference  in  the  cases  being  that  the  plea 
in  the  latter  concluded  to  the  country,  s.  p.  Rawlins  v.  Desborough,  2  M.  &  Rob. 
76,  328  ;  Craig  v.  Feim,  Car.  &  M.  (41  E.  C.  L.  R.)  43  ;  contra,  Pole  v.  Rogers, 
2  M.  &  Rob.  287. 

1  Frank  v.  Frank,  2  M.  &  Rob.  314. 

'  Collier  v.  Clark,  5  Q  &  B.  (48  E.  C.  L.  R.)  467. 

»  Smith  V.  Davies,  7  C.  &  P.  (32  E.  C.  L.  R.)  307. 

*  Soicard  v.  Leggatt,  7  Car.  &  P.  (32  E.  C.  L.  R.)  613  ;  Belcher  v.  Mcintosh,  8 
Car.  &  P.  (34  E.  C.  L.  R.)  720 ;  per  Lord  Denman,  C.  J.,  1  M.  &  Rob.  440. 

"  Doe  deni.  Trustees  of  Worcester  School  v.  Boivlands,  9  Car.  &  P.  (38  E.  C. 
L.  R.)  734. 

''  Chapman  v.  Raioson,  8  Q.  B.  (55  E.  C.  L.  R.)  673 ;  Fowler  v.  Coster,  supra, 
note.     So  in  Pearson  v.  Coles,  1  M.  &  Rob.  206,  where  lib.  ten.  only  was  pleaded. 


602  PROOFS. 

So,  too,  where  the  damages  are  liquidated  or  nominal,  or  the 
amount  of  the  debt  or  damage  is  admitted  on  the  pleadings,  or  is 
merely  matter  of  simple  calculation,  and  the  only  issues  raised  are 
alleged  affirmatively  by  the  defendant,  not  only  in  point  of  form,  but 
also  of  substance,  there  *the  defendant  is  entitled  to  begin. 
'^J  Thus,  in  debt  for  goods  sohi  and  delivered,  with  a  general 
plea  of  payment"^  only  upon  the  record,  the  defendant  was  held  en- 
titled to  begin.  So,  where  the  defendant  pleaded  his  discharge 
under  the  Insolvent  Debtor's  Act,  and  the  plaintiff,  by  his  replication, 
denied  the  plea.''  So,  in  replevin  upon  an  avowry  for  a  distress  for 
arrears  of  annuity,  to  which  there  was  a  plea  that  no  memorial  had 
been  enrolled:  replication,  that  a  memorandum  was  enrolled,  setting 
it  out;  rejoinder,  that  the  memorandum  did  not  truly  state  the  names 
of  the  persons  by  whom  the  annuity  was  to  be  received,  and  the  con- 
sideration ;  surrejoinder,  that  it  did  truly  state  both ;  the  defendant 
was  allowed  to  begin. ^ 

And  the  same  was  held  in  an  action  for  a  false  return  to  a  man- 
damus to  restore  a  parish  clerk,  to  which  the  defendant  had  returned 
that  the  plaintiff  was  addicted  to  habits  of  intoxication.  The  decla- 
ration in  the  action  negatived  these  allegations  in  the  return,  which 
the  defendant  re-asserted  in  his  plea  affirmatively  to  be  true.''  In  a 
feigned  issue,  the  plaintiffs  averred  that  the  goods  in  question  were 
not  the  goods  of  them  or  either  of  them;  and  the  defendant  asserted 
that  they  were  the  goods  of  them,  or  one  of  them ;  Lord  Abinger 
held  that  the  defendant  had  the  right  on  this  issue  to  begin,  as  the 
affirmative  lay  upon  him.^ 

In  ejectment,  the  lessor  of  the  plaintiff,  who  must  establish  and 
recover  on  the  strength  of  his  own  title,  has  generally  the  right  to 
begin ;  but  this  in  practice  is  subject  to  exceptions  where  the  de- 
fendant admits  the  prima  facie  title  of  the  plaintiff.  Thus,  if  the 
lessor  of  the  plaintiff  claim  as  heir  of  A.,  and  the  defendant  claim 
under   a  will  made  by  A.,  if  he  will  admit  that  A.  died  seised  and 

The  jud<;e,  when  he  has  the  means,  will  himself  look  at  the  facts  to  see  whether 
substantial  damages  are  or  can  be  claimed  ;  Bastard  v.  Smith,  2  M.  &  Rob. 
129, 

"  Biri  V.  Leif/h,  14  M.  &  W.  177  ;  Richardson  v.  Fell,  4  Dowl.  10;  or  set-off: 
see  Roche  v.  Chapman,  1  Ex.  10  ;  or  coverture :  Woodyate  v.  Putts,  2  C.  &  K. 
(61  E.  C.  L.  R.)  457. 

'  Lambert  v.  JIale,  9  Car.  &  P.  (38  E.  C.  L.  R.)  506. 

y  Jfo;/arth  v.  Ferrimj,  1  C.  &  K.  (47  E.  C.  L.  R.)  608. 

'  liowtcH  V.  Keale,  7*  Car.  &  P.  (32  E.  C.  L.  R.)  262. 

»  Hudson  V.  Brown,  8  Car.  &  P.  (34  E.  C.  L.  R.)  774. 


RIGHT     TO     BEGIN     IN     EJECTMENT.  604 

that  *the  lessor  is  his  heir  he  is  entitled  to  begin/'  He  must  r-^noA-i 
however  admit  the  whole  primd  facie  title  without  any  qual-  L  J 
ification,  and  admitting  only  a  portion  of  it,  or  admitting  it  only 
hypothetically,  will  not  suffice.  Thus,  in  the  case  above  suggested,  if 
the  defendant  claim  under  a  conveyance  by  A.  in  his  lifetime,  instead 
of  his  will,  he  is  not  entitled  to  begin,  for  by  admitting  the  heirship, 
and  seisin  of  ^4.,  unless  defeated  by  the  conveyance,  he  does  not 
absolutely  admit  the  seisin  of  the  ancestor  at  the  time  of  his  death;'' 
so,  if  the  defendant  found  his  title  even  in  part  under  a  marriage 
settlement  of  the  ancestor,  for  then  he  does  not  admit  the  title  as  to 
the  whole  f  and  if  the  defendant  claim  himself  as  heir,  he  cannot  by 
admitting  the  lessor  to  be  the  heir  unless  he  is  so,  entitle  himself  to 
begin."  It  was  formerly  thought,  and  it  has  been  held  in  some  in- 
stances,*^ that  if  the  lessor  claimed  under  a  will,  and  *the  de-  r^pnc-i 
fendant  under  a  later  will  or  codicil,  the  defendant  was 
entitled  to  begin,  if  he  admitted  the  primd  facie  case  of  the  lessor ; 
but  these  cases  have  been  overruled  by  a  recent  decision,^  where  the 
subject  was  fully  discussed  in  banc.  In  such  a  case  it  is  evident  the 
defendant  does  not  admit  the  whole  of  the  lessor's  case.  That  case 
is,  that  the  will  was  a  subsisting  will  at  the  time  of  the  .ancestor's 

"  Goodtitle  v.  Braham,  4  T.  R.  497  ;  Doe  v.  Smart,  1  M.  &  Rob.  476 ;  Fenn  v. 
Johnson,  cited  M.  &  M.  (22  C.  E.  L.  R.)  168,  n. ;  Adams  on  Eject.,  3d  edit.  288, 
where  Le  Blanc,  J.,  and  Wood,  B.,  so  ruled  on  several  occasions.  But  on  an- 
other occasion,  Gibbs,  .J.,  held  that  the  admission  did  not  give  the  defendant  the 
right  to  begin.  In  the  case  of  Doe  v.  Barnes,  1  M.  &  Rob.  386,  Sophia  Rich, 
ards,  the  sister  and  heiress  oP  John  Clavel,  took  possession  of  premises  of  which 
he  died  seised  ;  the  lessors  were  her  devisees  of  the  premises  and  her  heir-at- 
law,  who  was  also  heir-at-law  of  John  Clavel,  Lord  Denman  ruled  that  the 
defendant,  admitting  those  facts,  and  that  the  plaintiff  was  entitled  to  the 
property,  unless  he,  the  defendant,  proved  the  will  of  John  Clavel,  was  entitled 
to  begin. 

"  Where  in  ejectment  by  the  heir-at-law  to  recover  premises  conveyed  by  the 
deceased  ancestor,  under  a  deed  which  was  impeached  on  the  ground  of  his  in- 
capacity at  the  time  of  the  execution,  held,  that  as  the  seisin  of  the  ancestor  at 
the  time  of  his  death  was  not  admitted,  the  mere  admission  of  the  lessors  title 
as  heir  by  pedigree  did  not  entitle  the  defendant  to  begin  :  Doe  v.  Tucker,  M.  & 
M.  (22  E.  C.  L.  R.)  536;  Doe  v.  Smart,  1  M.  &  Rob.  476. 

^  Doe  V.  Lewis,  1  Car.  &  K.  (47  E.  C.  L.  R.)  122. 

«  Doe  V.  Bray,  M.  &  M.  (22  E.  C.  L.  R.)  166.  Where  each  party  claimed  as 
heir-at-law,  and  the  defendant,  if  legitimate,  was  clearly  heir,  it  was  held  (by 
Vaughan,  B.),  that  an  admission  by  him,  that  unless  he  were  legitimate,  the 
lessor  of  the  plaintiff  was  the  heir-at-law,  did  not  entitle  the  defendant  to  begin. 

^  Doe  V.  Cobett,  3  Camp.  368  •,  Doe  v.  Barnes,  supra. 

e  Doe  dem.  Bather  v.  Brayne,  5  C.  B.  (57  E.  C.  L.  R.)  655. 


605  PROOFS. 

death  ;  or  rather,  in  truth,  that  the  ancestor  devised  it,  and  the  ad- 
mission is  no  admission  of  that  fact,  but  at  most  only  a  qualified  one 
of  the  lessor's  title,  viz.,  unless  defeated  by  the  subsequent  will.^ 

It  seems  to  be  discretionary  in  the  judge,  whether,  after  the  plain- 
tiff has  closed  his  case,  and  the  defendant's  counsel  has  commenced 
his  address  to  the  jury,  the  plaintiff's  counsel  can  be  allowed  to  go 
into  a  new  case.**  In  a  penal  action  the  court  will  not  permit  a  defect 
in  the  plaintiff's  case  to  be  supplied,  unless  it  has  arisen  merely  from 
inadvertence  on  the  part  of  the  plaintiff's  counsel.' 

Where  there  are  several  issues,  the  proof  of  some  being  incumbent 
on  the  plaintiff,  and  of  others  on  the  defendant,  it  is  usual  for  the 
plaintiff  to  begin,-"  and  to  prove  those  which  are  essential  to  his  case, 

"  Per  Le  Bhinc,  J..  Edwards  v.  Sharrett,  I  East  614. 

'  Alldred  v.  Hulliwell,  1  Stark.  C.  (2  E.  C.  L.  R.)  117  ;  cor.  Lord  Ellenborough. 
Generally,  the  judge  will  allow  witnesses  to  be  called  to  obviate  any  objection 
beside  the  merits  of  the  case,  even  after  the  party's  case  is  closed  :  Giles  v. 
Powell,  2  Car.  &  P.  (12  E.  C.  L.  R.)  259. 

J  James  v.  Salter,  1  M.  &  Rob.  501  ;  Cvrtis  v.  Wheeler,  M.  &  M.  (22  E.  C.  L. 
R.)  493;  Williams  v.  Thomas,  4  C.  &  P.  (19  E  C.  L.  R.)  234;  Jackson  v. 
Hesheih,  2  Stark.  C.  (3  E.  C.  L.  R.)  518  ;  Booth  v.  Millns,  15  M.  &  W.  669  ;  see 

'  It  is  a  general  rule  that  the  plaintiff  who  has  the  burden  of  proof  shall  have 
the  general  reply  or  closing  argument,  and  the  only  exception  is  where  the  de- 
fendant, by  his  plea,  admits  the  whole  cause  of  action  stated  in  the  declaration, 
and  undertakes  to  remove  or  defeat  it  by  the  matter  set  up  in  his  bar  :  Ayre  v. 
Avstin,  6  Pick.  225  ;  see  also  Abat  v.  Signa,  5  Mart.  N.  S.  75.  And  where  the 
defendant  pleads  the  general  issue  in  connection  with  a  special  plea  which 
admits  the  cause  of  action,  the  right  of  reply  will  belong  to  the  plaintiff, 
although  the  defendant  should  waive  the  general  issue  :  Ayre  v.  Austin,  6  Pick. 
225.  In  an  action  of  trespass  qua.  clans,  freg.  if  the  defendant  plead  soil  and 
freehold  in  himself,  upon  which  issue  is  joined  and  there  be  no  other  plea,  he 
has  the  afiBrmative,  and  will  have  the  right  of  opening  and  closing  :  Davis  v. 
Mason,  6  Pick.  156.  Where  the  probate  of  a  will  is  opposed  on  the  ground 
that  the  testator  when  he  executed  it  was  not  of  sane  mind,  the  burden  of  proof 
in  the  first  instance  is  on  him  Avho  offers  the  will  for  probate,  and  he  will  ac- 
cordingly be  entitled  to  the  opening  and  closing  argument :  Brooks  v.  Barrett, 
7  Pick.  94.  "  Although  in  most  cases  where  the  defendant  pleads  merely  an 
affirmative  plea,  he  is  by  the  course  of  practice  entitled  to  the  conclusion,  yet 
the  plea  of  property,  as  I  apprehend,  does  not  produce  this  effect  in  the  action 
of  replevin.  The  plaintiff  I  think  must,  notwithstanding,  first  prove  that  he 
has  a  right  to  maintain  his  writ  of  replevin,  by  showing  that  he  has  either  an 
absolute  or  special  property  in  himself."  Per  Kennedy,  J.,  in  Marsh  v.  Pier, 
4  Rawlc  2.S3.  Where  counsel  rose  to  address  the  jury,  and  the  judge  told  him 
he  should  charge  against  him,  and  he  did  not  therefore  address  the  jury,  it  was 
held  that  this  was  a  voluntary  relinquishment  of  the  right  to  address  them, 
not  compelled  by  the  decision  of  the  judge:  Jackson  v.  Codt/,  3  Cow.  140.    G. 


ORDER     OF     PROOF.  605 

and  then  the  defendant  does  the  same,  and  afterwards  tlie  phiintifT  is 
entitled  to  go  into  evidence  to  controvert  the  defendant's  affirmative 
proofs  ;  the  defendant's  counsel  is  entitled  to  a  reply  upon  such  evi- 
dence, "^  in  support  of  his  own  affirmatives,  *and  the  plain-  r*/'Af^-i 
tiif's  counsel  to  a  general  reply.  Where,  however,  there  are 
issues  involving  different  transactions,  the  proof  of  one  of  which  is 
incumbent  on  the  plaintiff,  and  the  proof  of  the  other  of  which  is 
incumbent  on  the  defendant,  some  difference  has  obtained  in  practice 
on  the  question  whether  the  plaintiff  be  bound  to  go  into  evidence,  as 
part  of  his  own  case,  to  negative  the  defendant's  case,  as  well  as 
affirmatively  to  establish  his  own.  According  to  the  later  authorities 
it  is  now  settled  that  he  is  not  bound  to  enter  on  any  such  negative 
evidence  in  the  first  instance,  but  may  waive  his  proof  until  the 
defendant  has  exhausted  his  affirmative  evidence  in  support  of  his 
own  case.  But  it  is  also  laid  down,  that  if  the  plaintiff  elect  to  enter 
at  all  into  such  negative  evidence  in  the  first  instance,  he  must  then 
produce  the  whole  of  that  evidence,  and  that  he  cannot  in  such  case 
be  permitted  to  adduce  negative  evidence  generally  in  reply.  Where 
to  a  declaration  for  a  libel  the  defendant  pleaded  the  general  issue, 
and  several  pleas  of  justification,  it  was  held  that  the  plaintiff  might, 
if  he  chose,  go  into  evidence  in  the  first  instance  to  negative  the 
pleas  of  justification,  but  that  he  could  not  go  into  part  of  such  evi- 
dence in  the  first  instance,  and  adduce  the  remainder  in  reply  to  the 
defendant's  case.™  Although  *there  be  in  fact  several  ^  ^^„^ 
issues,  as  where  in  an  action  of  assault  and  battery  the  de-    ^          -' 

Mercer  v.  Wkall,  5  Q.  B.  (48  E.  C.  L.  R.)  447.  A  party  has  a  right  to  have 
all  the  issues  tried,  although  one  which  goes  to  the  whole  cause  of  action  or 
defence  is  proved  against  him  by  his  own  witness  :  Fry  v.  Monckton,  2  M.  & 
Rob.  303. 

■^  Meagoe  v.  Simmons,  3  Car.  &  P.  (14  E.  C.  L.  R.)  75;  M.  &  M.  (22  E.  C.  L. 
R.)  121. 

'  See  Rees  v.  Smith,  2  Stark.  C.  (3  E.  C.  L.  R.)  31  :  where  in  an  action  of 
trespass,  q.  c.f.,  &c.,  to  which  the  defendant  had  pleaded  the  general  issue,  and 
pleas  of  justification,  Lord  Ellenborough  stated  the  rule  to  be,  that  where  by 
pleading,  or  by  reason  of  notice  the  defence  was  known,  the  counsel  for  the 
plaintiff  was  bound  to  open  the  whole  case  in  chief,  and  could  not  proceed  in 
parts.  And  his  Lordship  held  the  same  doctrine  in  the  case  of  bills  of  exchange, 
where  a  notice  had  been  given  of  the  intention  to  dispute  the  consideration  : 
Delauney  v.  Mitchell,  1  Stark.  C.  (2  E.  C.  L.  R.)  439  ;  see  also  Spooner  v.  Gardi- 
ner, R.  &  M.  (21  E.  C.  L.  R.)  86. 

""  Broivn  v.  Murray,  R.  &  M.  (21  E.  C.  L.  R.)  254  ;  cor.  Lord  Tenterden,  C. 
J.  His  Lordship  had  previously  ruled  to  the  same  effect  in  Sylvester  v.  Hall, 
Sitt.  after  Trin.,  July  1825  ;  where,  to  an  action  for  trespass  and  false  imprison- 


607  PROOFS. 

fendant  pleads  not  guilty,  and  son  assault  demesne;  yet,  if  the 
defence  consists  of  distinct  collateral  matter,  the  negative  of  which 
requires  no  proof  from  the  plaintiff  in  the  first  instance,  notwith- 
standing the  plaintiff  had  notice  of  the  defence  intended  to  be  set  up, 
it  is  not  necessary  for  him  to  go  into  any  evidence  in  answer  to  that 
defence,  until  the  defendant  has,  by  his  proof,  called  upon  him  for  a 
reply  ;  this  appears  to  be  a  matter  of  practical  convenience,  subject 
to  the  discretion  of  the  Court."     It  is  possible  that  the   defendant 

ment,  the  defendant  had  pleaded  the  general  issue,  and  also  several  pleas  in 
justification.  Park,  J.,  ruled  accordingly  in  Eoe  v.  Day,  7  C.  &  P.  (32  E.  C. 
L.  R.)  707.  On  the  trial  of  an  action  for  not  setting  out  tithes,  some  questions 
were  asked  of  the  plaintiff's  witnesses,  on  cross-examination,  as  to  the  land 
being  barren,  and  who  on  re-examination  swore  as  to  its  fertility.  The  defence 
was,  that  the  land  was  barren.  On  evidence  being  given  by  the  defendant  to  this 
efifect,  the  plaintiff  was  allowed  to  give  evidence  in  reply:  Greswolde  v.  Kemp, 
Car.  &  M.  (41  E.  C.  L.  R.)  635. 

°  Lord  Tenterden,  C.  J.,  adopted  this  course,  and  allowed  a  plaintiff  to  give 
evidence  in  answer  to  a  defence  in  an  action  on  a  bill  that  there  was  no  con- 
sideration, after  notice  of  the  intended  defence:  Sitt.  after  Ilil.  1820,  at  West- 
minster; provided  no  suspicion  has  been  cast  on  the  plaintiff's  title  by  ci'oss- 
examination  of  plaintiff's  witnesses:  R.  &  M.  (21  E.  C.  L.  R.)  255,  supra;  see 
Vol.  II.,  tit.  Bills  of  Exchange  ;  Spooner  v.  Gardiner,  R.  &  M.  (21  E,  C.  L.  R.) 
84.  Where  the  plaintiff  made  out  a  prima  facie  case  in  ejectment  as  heir-at- 
law,  and  the  defendant  set  up  a  claim  under  a  will,  the  plaintiff  was  allowed  to 
prove  a  claim  under  a  subsequent  will :  Doe  v.  Gosley,  2  M.  &  Rob.  243.  Wil- 
liams V.  Davies,  1  C.  &  M.  464,  was  a  case  where  there  were  cross  demands,  and 
set-off  was  pleaded  ;  it  was  held  that  the  plaintiff  need  not  in  the  first  instance 
prove  more  than  the  balance  which  he  claimed,  and  that  after  the  defendant 
had  proved  his  set-off,  the  plaintiff  might  prove  other  sums  to  be  due,  so  as  to 
cover  the  set-off;  and  Lord  Lyndhurst,  C.  B.,  said  either  way  of  proceeding  may 
be  correct,  and  it  must  be  left  to  the  discretion  of  the  judge  to  admit  the  evi- 
dence or  not.  In  Wright  v.  Wilson.  18  L.  J.,  C.  P.  333,  the  defendant  having 
introduced  a  new  and  material  fact  not  alluded  to  in  the  plaintiff's  case,  as  it 
appeared  in  evidence  or  in  the  pleadings,  the  plaintiff  was  allowed  to  produce 
evidence  in  answer  to  it,  and  the  court  objected  to  any  general  rule,  saying  it 
was  in  the  discretion  of  the  judge  and  subject  to  the  review  of  the  court.  The 
plaintiff  in  ejectment  made  out  n  prima  facie  case,  by  showing  that  the  defend- 
ant came  into  possession  under  his  tenant.  The  defendant  giving  evidence  to 
show  that  a  piece  of  gai'den  ground,  part  of  the  disputed  premises,  was  demised 
to  him  l)y  his  father,  the  plaintiff  was  admitted  to  show  in  reply  rent  received 
for  the  land  by  himself  and  his  predecessor  for  forty  years :  Doe  v.  Mohbs,  1  Car. 
&  M.  (41  E.  C.  L.  R.)  1.  So,  in  trespass  for  taking  the  plaintiff's  goods,  where 
the  pleas  were  not  guilty,  a  traverse  of  the  plaintiff's  property,  and  that  they 
were  distrained  after  being  fraudulently  removed  to  avoid  a  distress,  and  the 
plaintiff  at  the  trial  proved  the  trespass  and  his  right  to  the  goods,  and  the  de- 
fendant gave  evidence  of  the  fraudulent  removal ;  it  was  held  that  the  plaintiff 
might  prove  in  reply,  that  the  defendant  had  parted  with  his  reversion  before 


ORDER     OF     PROOF.  608 

may  *not  be  able  to  establisb  any  case,  and  thus  time  may 

be  saved  by  postponing  the  plaintiff's  reply ;  besides,  until    L         -^ 

the   defendant  has  adduced  such  evidence,  it  cannot  be  known   with 

any  certainty  to  what  points  the  plaintiff  is  to  adduce  his  evidence  in 

reply. 

After  the  defendant  has  adduced  his  evidence  the  plaintiff's 
counsel  at  once  proceeds,  without  any  observations,  to  tender  any 
evidence  he  may  have  in  reply  ;  but  such  evidence  must  be  con- 
fined by  negativing  specific  acts  sworn  to  by  the  defendant's  wit- 
nesses, the  proof  of  which  he  could  not  be  expected  to  have  antici-^ 
pated,  or  to  answer  the  defendant's  case,  where  he  has  not  attempted 
to  neg-ative  that  case  in  the  first  instance.  He  cannot  be  allowed  to 
adduce  evidence  which  he  might  have  given  in  support  of  his  own 
case  in  the  first  instance."  Upon  the  evidence  thus  ad-  r*ftoq-| 
duced   in   *reply  the  defendant's  counsel   has  then  a  right 

the  removal:  Ashmore  v.  Hardy,  7  C.  &  P.  (32  E.  C.  L.  R.)  501.  Lord  Ellen- 
borough  usually  required  the  plaintiff  under  such  circumstances  to  ^o  at  once 
into  the  whole  of  his  case. 

°  Thus  where  the  plaintiff  sued  as  endorsee  of  a  bill  of  exchange,  and  on  a 
traverse  of  the  endorsement  relied  in  the  first  instance  on  a  prima  facie  case  by 
merely  giving  evidence  of  the  defendant's  handwriting.  The  defendant  then 
proved  that  the  plaintifi'  was  too  poor  to  have  discounted  the  bill,  and  denied  all 
knowledge  of  it,  and  had  said  that  the  action  was  not  brought  by  his  authority ; 
it  was  held,  that  the  plaintiff  in  reply  could  not  produce  evidence  to  show  that 
he  had  the  means  of  discounting  the  bill  and  had  in  fact  done  so,  for  the  fresh 
evidence  was  merely  confirmatory  of  the  plaintifTs  case:  Jacobs  v.  Tarleton,  11 
Q.  B.  (63  E.  C.  L.  R.)  421. 

So  if  the  prosecutor  give  evidence  to  prove  that  a  robbery  was  committed  by 
the  prisoner,  he  cannot,  upon  an  alibi  being  set  up,  prove  that  he  was  not  at 
the  other  place,  but  near  the  spot  where  the  robbery  was  committed :  B.  v.  Hil- 
ditch,  5  C.  &  P.  (24  E.  C.  L.  R.)  299.  But  in  case  for  the  negligent  driving  at 
L.,  the  plaintiff  having  given  evidence  to  show  he  was  near  the  spot  at  the  time 
in  question,  the  defence  set  up  an  alibi  at  R.  It  was  held,  that  this  being  a  new 
fact  disclosed  in  the  defence  the  plaintiff  might  call  in  evidence  in  contradiction 
to  show  that  he  was  at  L.,  although  the  general  nature  of  the  defence  had  been 
disclosed  by  the  cross-examination :  Briggs  v.  Aynsworth,  2  M.  &  Rob.  168. 

In  a  prosecution,  however,  for  larceny,  the  case  for  the  Crown  was,  that  the 
goods  were  stolen  and  found  in  possession  of  the  prisoner.  For  the  defence,  his 
daughter  proved  that  he  bought  them  of  A.  The  prosecutor  called  A.,  and  at- 
tempted to  prove  by  him  that  he  had  seen  the  prisoner  steal  them  ;  but  he  was 
confined  by  the  court  to  the  question  whether  he  had  sold  them  :  R.  v.  Stimpson, 
2  C.  &  P.  (12  E.  C.  L.  R.)  415.  So,  in  an  action  on  a  builder's  bill,  the  defence 
was  that  the  charges  were  too  high,  and  the  defendant  called  a  surveyor  who 
said  they  were  £100  too  high,  when  the  plaintiff  offered  a  letter  written  on  the 
defendant's  part  by  his  attorney  some  time  before,  complaining  that  his  sur- 


610  PROOFS. 

r*fiim    ^^  comment,  but  his   observations  must  be   confined  to  that 
*matter,  for  upon  the   phiintiff's  original   case  and  his  own 
evidence  he  has  already  commented.     The   plaintiff  is   then   entitled 
to  the  general  reply. 

Such  is  the  course  where  the  plaintiif  begins;  but  where  the  proof 
lies  upon  the  defendant  alone,  he  is  entitled  to  begin, ^  the  order  of 
proof  is  reversed,  and  his  counsel  becomes  entitled  to  the  reply.  Thus 
where  the  lessor  of  the  plaintiff  claimed  as  heir-at-law  and  the  defend- 
ant as  devisee,  and  the  latter  admitting  the  lessor's  title  as  heir 
opened  a  new  case,  which  the  plaintiff  answered  by  evidence;  it  was 
held,  that   the  defendant  was   entitled   to   the   general  reply.''     The 

veyor  thoutrht  them  £60  too  high  ;  but  Lord  Tenterden  held  that  it  was  not 
properly  evidence  in  reply:  Kiiapp  v.  Ilaskall,  4  C.  &  P.  (19  E.  C.  L.  R.)  590. 
So,  in  an  action  for  the  negligent  driving  of  the  defendant's  servant,  whereby 
the  plaintiff's  goods  vrere  injured,  being  then  in  the  possession  of  his  servant; 
the  witness  who  proved  it  was  cross-examined  with  a  view  to  show  that  they 
were  the  property'  of  P.,  and  witnesses  were  called  for  the  same  object ;  a  wit- 
ness was  allowed  to  be  called  by  the  plaintiff,  in  reply,  to  prove  that  the  goods 
were  not  P.'s,  but  not  to  prove  that  they  were  the  plaintiff's  :  Whittingham  v. 
Bloxham,  4  C.  &  P.  (19  E.  C.  L.  R.)  597  ;  and  see  Rowe  v.  Brenton,  3  M.  &  R. 
133  ;  Boe  V.  Day,  7  Car.  &  P.  (32  E.  C.  L.  R.)  705 ;  Brown  v.  Murray,  Ry.  & 
M.  (21  E.  C.  L.  R.)  254.  AVhere  A.  was  called  by  the  defendant  to  prove  con- 
versations between  the  plaintiff  and  the  defendant's  agents,  cutting  down  the 
plaintiff's  claim,  it  was  proposed  by  the  plaintiff,  after  the  defendant's  case  was 
closed,  to  call  B.  in  order  to  contradict  A. ;  and  this  course  was  allowed,  not- 
withstanding that  the  course  of  cross-examination  by  the  defendant's  counsel 
gave  notice  of  this  case,  so  that  the  plaintiff  might  have  called  B.  in  the  first 
instance.  But  the  examination  of  B.  was  confined  to  what  took  place  on  any 
occasion  when  A.  admitted  that  B.  was  present :  Cope  v.  Thames  Haven  Dock 
Compamj,  2  C.  &  K.  (61  E.  C.  L.  R.)  757.  So,  although  a  prosecutor  cannot 
call  witnesses  to  strengthen  his  case,  he  may  to  contradict  the  prisoner's  wit- 
nesses: 2  Lew.  C.  C.  J51.  Where  a  prisoner  on  his  trial  makes  a  defence  re- 
pugnant to  that  made  by  him  on  his  examination  before  the  committing  magis- 
trate, the  latter  not  having  been  given  as  evidence  in  chief,  cannot,  it  has  been 
said,  be  proved  to  contradict  the  prisoner's  witnesses :  B.  v.  Powell,  Car.  &  M. 
(41  E.  C.  L.  R.)  500. 

P  See  ante,  pp.  602,  603. 

1  Goodtitle  dem.  Revett  v.  Braham,  on  a  trial  at  bar,  4  T.  R.  497.  From  the 
report  of  this  case  it  appears  that  the  whole  case  went  to  the  jury  on  the  de- 
fondant's  title  as  devisee,  the  lessor's  title  as  heir  being  admitted;  and  see  Fenn 
v.  Jit/ui.sdii,  Adams'  P^ject.  4th  ed. ;  Doe  dem.  Corbett  v.  Corhett,  3  Camp.  368, 
ante,  p.  604.  But  where  the  plaintiff  in  such  a  case  is  put  to  proof  of  his  pedi- 
gree, it  seems  to  be  clear  that  he  may,  at  his  election,  go  into  proof  to  con- 
trovert the  defendant's  supposed  case,  and  he  would  then  be  entitled  to  the 
general  reply;  see  Doe  dem.  Bather  v.  Braye,  5  C.  B.  (57  E.  C.  L.  R.)  655; 
supra,  p.  605. 


ARGUMENTS     OF    COUNSEL.  610 

title  of  the  lessor  as  heir  being  once  admitted,  the  effect  as  to  the 
order  of  proof  was  the  same  as  if  it  had  not  been  disputed  at  all ;  and 
consequently,  the  whole  issue  lying  upon  the  defendajit,  he  was  in 
the  same  situation  with  a  plaintiff  in  ordinary  cases,  and  entitled  to 
begin/ 

In   civil,  and  now  also  in   criminal  cases,^  the  party,  *in    r*p-|i-i 
addition  to  the  evidence  which   he   adduces  (the  probatio  in 
artificialis  of  the  Roman  law),'  is  entitled  to  the  aid  of  the  comments 
and  arguments  of  counsel"  (the  prohatio  artificialis),  as  applied  to  the 
evidence  in  general.     The  counsel   for  the  plaintiff"  has  an  opportu- 

'  See  ante,  p.  604. 

^  Upon  indictments  for  raisdeineanors  the  defendant's  counsel  was  always 
entitled  to  address  the  jury,  and  the  same  privilege  was  conferred  by  7  Will. 
III.  c.  3,  in  cases  of  treason  within  that  statute  ;  and  in  cases  of  felony  and 
summary  convictions  by  6  &  7  Will.  IV.  c.  114,  ss.  1,  2.  After  a  prisoner's 
counsel  has  addressed  the  jury,  the  prisoner  cannot  be  heard  himself;  R.  v. 
Boucher,  8  C.  &  P.  (34  E.  C.  L.  R.)  141  ;  R.  v.  Rider,  Ibid.  539.  He  cannot 
have  the  privilege  of  two  statements,  one  by  himself  and  another  by  his  counsel : 
R.  V.  Burrows,  2  M.  &  Rob.  124.  But  where  no  one  was  present  at  the  time  to 
contradict  the  prosecutor's  statement,  the  prisoner  has  been  allowed  to  make  his 
own  statement  before  his  counsel  addressed  the  jury:  R.  v.  Malings,  8  C.  &  P. 
(34  E.  C.  L.  R.)  242. 

'  Quintil.,  lib.  5,  c.  8.  According  to  the  practice  of  the  ancient  Roman  law, 
the  advocate  was  entitled  to  make  a  perpetual  running  comment  upon  the  testi- 
mony of  the  witnesses,  and  the  documentary  evidence  as  it  was  adduced. 
Formerly,  in  our  own  Courts,  the  junior  as  well  as  the  senior  counsel  addressed 
the  jury  ;  and  the  form  is  still  preserved  in  trials  for  high  treason. 

"  The  object  of  the  opening  of  a  case  by  counsel  is  to  give  the  jury  a  general 
notion  of  what  will  be  given  in  evidence  ;  but  a  statement  of  a  fact  by  him  does 
not  in  itself  alone  give  the  opposite  party  a  right  to  use  it  as  a  fact  in  the  cause: 
per  Pollock,  C.  B.,  1  C.  &  K.  (47  E.  C.  L.  R.)  684.  Where  a  party  in  a  civil 
suit  conducts  his  own  case,  it  has  been  said  that  counsel  cannot  be  heard  for 
him  on  points  of  law  :  Moscati  v.  Lawson,  7  C.  &  P.  (32  E.  C.  L.  R.)  328  ;  Shut- 
tleworth  v.  Nicholson,  1  M.  &  Rob.  251.  Nor  can  the  same  person  act  as  advo- 
cate and  give  evidence  as  a  witness :  Stones  v.  Byron,  4  D.  &  L.  393.  Counsel 
also  cannot  be  heard  for  a  witness  on  the  point,  whether  on  an  objection  made 
by  a  witness  to  a  question  he  is  bound  or  not  to  answer  it :  R.  v.  Adey,  1  M.  & 
Rob.  94.  When  points  of  law  arise  in  the  course  of  a  cause,  all  the  counsel  are 
heard  upon  it ;  but  the  leading  counsel  only  replies  :  of  course,  when  the  de- 
fendant's counsel  applies  for  a  nonsuit,  and  is  answered  by  the  plaintiff's 
counsel,  the  reply  is  on  the  law  only:  Arden  v.  Tucker,  1  M.  &  Rob.  192. 
Upon  the  question  as  to  the  right  to  begin,  one  counsel  only  is  heard :  Rawlins 
V.  Desborough,  2  M.  &  Rob.  70;  see  Bastard  v.  Smith,  Ibid.  130. 

^  The  counsel  for  a  plaintiff  labors  under  a  disadvantage  in  commenting  upon 
his  evidence  before  it  has  been  given ;  it  is  frequently  hazardous  to  lay  much 
stress  upon  facts  which  afterwards  may  not  bo  proved,  and  it  not  unfrequently 
happens  that  the  proof  varies  so  much  from  the  statement  as  to  render  his  com- 


612  PROOFS. 

r^n-ic)-\  Jiity  for  such  *comments  in  stating  his  case  to  the  jury/ 
When  the  plaintiff's  case  has  been  concluded,  the  defend- 
ant's counsel  in  his  turn  observes  upon  the  evidence  given,  and  also 
on  that  which  he  intends  to  adduce;^  and  after  the  defendant  has  ex- 
hausted his  evidence,  the  plaintiff's  counsel  replies.''     And  tlius  each 

ments  and  inferences  irrelevant,  and  sometimes  even  injurious.  Tlie  same 
observations  apply  to  the  defence,  where  the  defendant  calls  witnesses  :  his 
counsel  addresses  the  jury  upon  the  case  to  be  made  out  for  the  defendant,  and 
upon  the  contradiction  to  be  given  to  the  plaintiff's  witnesses  hypothetically, 
upon  the  supposition  that  all  which  is  stated  will  be  proved  ;  he  stands  there- 
fore in  a  most  hazardous  situation  with  reference  to  the  plaintiff's  counsel, 
who  has  the  opportunity  of  commenting  on  the  whole  case,  not  conditionally 
and  subject  to  the  contingency  that  the  very  foundation  on  which  his  argu- 
ments rest  may  sink  from  under  him,  but  with  a  full  and  certain  knowledge  of 
all  the  evidence  in  the  cause.  This  practice  not  unfrequently  induces  a  de- 
fendant's counsel  to  waive  his  defence  by  witnesses,  and  to  rely  on  the  infirmity 
of  the  plaintiff's  case,  rather  than  give  his  counsel  the  opportunity  of  replying. 
This  is  a  practice  attended  with  considerable  inconvenience,  inasmuch  as  it 
frequently  excludes  from  the  view  of  the  Court  and  jury  circumstances  which 
might  materially  assist  them  in  attaining  to  a  correct  conclusion  in  law  and  in 
fact,  and  it  has  justly  led  to  a  conviction  on  the  part  of  many  eminent  persons 
that  the  practice  ought  to  be  altered. 

y  In  criminal  cases  the  duty  of  the  counsel  for  the  prosecution  is  to  assist  in 
the  furtherance  of  justice,  without  considering  himself  as  acting  for  any  party  : 
R.  V.  Thiirsfield,  8  C.  &  P.  (3-1  E.  C.  L.  R.)  269.  And  if  there  be  no  counsel 
regularly  retained  for  the  prosecution,  but  the  depositions  are  by  direction  of 
the  Court  handed  to  counsel,  he  should  consider  himself  as  counsel  for  the 
Crown,  and  act  in  all  respects  as  if  instructed  by  the  prosecutor,  not  as  mere 
assistant  to  the  judge  in  examining  the  witnesses:  R.  v.  Littleton,  9  C.  &  P.  (38 
E.  C.  L.  R.)  671.  He  should  open  the  case  for  the  prosecution  wherever  there 
is  counsel  for  the  prisoner:  R.  v.  Gascoine,  7  C.  &  P.  (32  E.  C.  L.  R.)  772  ;  or 
the  circumstances  of  the  case  are  peculiar:  R.  v.  Bolder,  Ibid.  773.  In  so  doing 
he  may  state  declarations  made  by  the  prisoner  as  well  as  facts  :  R.  v.  Hartel, 
7  C.  &'P.  (32  E.  C.  L.  R.)  773 ;  R.  v.  Orrell,  1  M.  &  Rob.  467 ;  7  C.  &  P.  (32 
E.  C.  L.  R.)  774,  s.  c. ;  may  read  the  general  observations  of  a  judge,  made  some 
years  before,  on  the  nature  and  effect  of  circumstantial  evidence,  using  them 
as  his  own  opinions  and  as  part  of  his  own  address  :  R.  v.  Courcoisicr,  9  C.  & 
P.  (38  E.  C.  L.  R.)  362:  and  may  put  hypothetically  the  case  of  an  attack  upon 
the  character  of  a  witness  for  the  Crown,  and  state  that  if  made  he  shall  be 
prepared  to  rebut  it:  Ibid. 

^  But  the  counsel  for  a  prisoner  in  a  criminal  case  cannot  state  the  prisoner's 
story,  or  anytliiiig  which  he  is  not  in  a  condition  to  prove  :  R.  v.  Beard,  8  C.  & 
P.  (34  E.  C.  L.  R.)  142. 

*  Since  the  passing  of  the  Prisoners'  Counsel  Bill,  6  &  7  Will.  IV'.,  c.  114, 
the  following  rules  on  this  subject  have  been  made  by  the  judges  :  7  C.  &  P. 
(32  E.  C.  L.  R.)  676;  2  Lew.  C.  C.  262:  "If  the  only  evidence  called  on  the 
part  of  the  prisoner  is  evidence  to  character,  although  the  counsel  for  the  prose- 


ARGUMENTS     OF     COUNSEL.  613 

party  lias  an   opportunity   of  *commenting   upon   the  wLole    r^piq-i 
of  the   evidence.''     If  the   defendant's  counsel  merely  com- 
ment on   the  plaintiff's  case,  and  adduce  no  evidence/  the  plaintiflF's 

cution  is  entitled  to  the  reply,  it  will  be  a  matter  for  his  discretion  whether  he 
will  use  it  or  not ;  cases  may  occur  in  which  it  may  be  fit  and  proper  so  to  do. 
In  cases  of  public  prosecutions  for  felony,  instituted  by  the  Crown,  the  law 
officers  of  the  Crown,  and  those  who  represent  them,  are  in  strictness  entitled 
to  the  reply,  although  no  evidence  is  produced  on  the  part  of  the  prisoner." 
They  may  in  strictness  do  so,  although  the  evidence  on  the  part  of  the  prisoner 
be  only  to  character:  R.  v.  Stannnrd,  7  C.  &  P.  (32  E.  C.  L.  R.)  703  ;  although 
the  Court  will  recommend  the  right  to  be  exercised  only  under  special  circum- 
stances :  Ibid.  And  the  reply  may  be  not  on  the  evidence  to  character  only, 
but  on  the  whole  case  :  IL  v.  Whiting,  7  C.  &  P.  (32  E.  C.  L.  R.)  771.  But  on 
an  indictment  against  two  for  stealing  sheep  and  two  for  receiving  them,  the 
latter  of  whom  alone  called  witnesses,  it  was  held,  that  although  the  counsel 
for  the  prosecution  was  entitled  to  the  general  reply,  he  was  bound  to  confine 
it  to  the  case  of  the  party  calling  witnesses  :  R.  v.  Hayes,  2  M.  &  Rob.  155. 
And  where  A.  was  indicted  for  feloniously  abusing  a  girl  under  ten  years  of 
age,  and  B.  for  aiding  and  abetting,  and  ^.'s  counsel  called  no  witnesses,  but 
5.,  who  had  no  counsel,  called  a  witness  to  prove  an  alibi  for  A.,  it  was  held, 
that  this  was  evidence  for  A.,  and  the  counsel  for  the  prosecution  might  reply 
on  the  whole  case,  but  should  exercise  his  right  with  great  forbearance  :  R.  v. 
Jor^Zan,  9  C.  &  P.  (38  E.  C.  L.  R.)  118. 

^  Where  a  plea  has  been  demurred  to,  and  judgment  given  for  the  plaintiff,  and 
the  venire  is  as  well  to  try  the  issue  joined  as  to  assess  damages  upon  the  plea 
demurred  to  ;  the  defendant's  counsel  cannot  comment  on  the  facts  contained  in 
that  plea  as  admitted  :  Ingram  v.  Lawson,  2  M.  &  Rob.  253  ;  but  see  Gregory  v. 
Duke  of  Brunsivicl;  1  C.  &  K.  (47  E.  C.  L.  R.)  24. 

"  But  if  the  defendant's  counsel  state  facts  which  he  proposes  to  prove,  and 
afterwards  declines  to  call  witnesses,  the  prevalent  opinion  seems  to  be,  that  the 
plaintiff's  counsel  is  entitled  to  reply:  R.  v.  BignoM,  1  Dow.  &  Ry.  C.  (16  E. 
C.  L.  R.)  59 ;  R.  V.  Home,  20  How.  St.  Tr.  662  ;  R.  v.  Carlisle,  6  C.  &  P.  (25 
E.  C.  L.  R.)  636  ;  Faith  v.  Mchityre,  7  C.  &  P.  (32  E.  C.  L.  R.)  44.  There  the 
counsel  for  the  defendant  having  proved  a  document  on  cross-examination,  read 
it  as  part  of  his  speech,  and  Parke,  B.,  intimated,  that  in  point  of  good  faith  it 
ought  to  be  put  in,  which  was  done,  and  the  plaintiflF's  counsel  replied.  In 
Crerar  v.  Soda,  M.  &  M.  (22  E.  C.  L.  R.)  86,  Lord  Tenterden,  C.  J.,  and  in 
Naish  V.  Brown,  2  C.  &  K.  (61  E.  C.  L.  R.)  219,  Pollock,  C.  B.,  held  that  the 
allowing  a  reply  in  such  a  case  was  discretionary  on  the  part  of  the  judge;  the 
object  being  to  prevent  injustice  by  the  statement  of  facts  not  intended  to  be 
pi'oved.  An  account-book  having  been  put  into  the  witness's  hands  to  refresh 
his  memory,  the  opposite  counsel  made  observations  as  to  the  state  in  which  it 
was  kept;  but  this  was  held  not  to  give  a  right  to  reply  :  Pullen  v.  White,  3  C. 
&  P.  (14  E.  C.  L.  R.)  434.  Nor  does  evidence  given  by  a  defendant  to  satisfy 
the  judge  merely,  e.  g.  to  show  the  inadmissibility  of  secondary  evidence,  en- 
title the  plaintiflF  to  a  reply :  Harvey  v.  Mitchell.  2  M.  &  Rob.  366.  In  crown 
and  revenue  cases,  the  Attorney-General  and  those  who  represent  him  have  a 
right  to  reply,  although  no  evidence  be  given  by  the  defendant.     Wherever  the 


613  PROOFS. 

^  counsel  cannot  *reply,  for  he  has  already  been  heard. 
L  J  Where  the  plaintiff  adduces  fresh  evidence  in  contradiction 
of  some  new  facts  stated  by  the  defendant's  witnesses/  it  is  unneces- 
sary to  preface  such  evidence  by  observations  ;  for,  after  the  defend- 
ant's counsel  has  observed  upon  the  evidence  in  contradiction,  the 
plaintiff's  counsel  is  entitled  to  a  general  reply.  And  in  such  case 
the  defendant's  counsel  may  be  heard,  but  he  is  not  entitled  to  reason 
upon  the  whole  of  the  evidence,  he  must  confine  his  remarks  to  the 
subject  of  contradiction  only,  having  already  made  his  observations 
on  the  supposition  that  his  witnesses  would  be  believed,  and  his  case 
established. 

Wliere  documentary  evidence  is  tendered  which  is  prima  facie  ad- 
missible, the  opposite  party  cannot,  it  has  been  said,  at  that  stage 
introduce  independent  evidence  to  show  that  it  is  inadmissible,  such 
evidence  being  part  of  his  own  case.''  But  this  would  seem  to  be  erro- 
neous,*^  and  *if  it  be  necessary,  in  order  to  introduce  secondary 
L  -I  evidence,  to  prove  possession  of  a  document  by  the  adversary, 
he  may  from  the  nature  of  the  case  produce  evidence  to  show  that  he 
had  not  possession  of  it.^ 

If  several  defendants  appear  by  different  counsel,  the  issues  on 
their  respective  pleas  being  the  same,  and  they  ai'e  in  the  same  in- 
terest, only  one  counsel  can  be  heard  for  all.''  Thus,  upon  a  joint 
plea  of  not  guilty,  the  counsel  of  each  defendant  cannot  separately 
cross-examine  or  address  the  jury.'  Where  the  defendants  in  eject- 
king's  counsel  appear  officially  they  have  this  riffht:  R.  v.  Gardner,  1  C.  &  K. 
(47  E.  C.  L.  R.)  635  ;  and  note  ;  see  note  (a),  supra. 

*  See  supra,  p.  608,  note  (o),  as  to  what  evidence  the  plaintiff  may  adduce  in 
reply. 

"  Jones  V.  Fort,  M.  &  M.  (22  E.  C.  L.  R.)  19G  ;  Field  v.  Woods,  7  Ad.  &  E. 
(34  E.  C.  L.  R.)  114.  But  this  rule  was  said  to  be  subject  to  the  discretion  of 
the  judge  in  the  particular  case:  see  M.  &  M.  (22  E.  C.  L.  R.)  197,  n. 

^  The  old  ruling  can  hardly  be  supported,  when  it  is  remembered  that  such 
evidence  is  not  evidence  in  the  cause,  but  for  the  judge  on  a  collateral  and  in- 
cidental question  upon  which  he  ought  to  hear  the  whole  evidence  on  both  sides 
and  determine,  before  the  evidence  is  admitted:  Cleave  v.  Jones,  Hereford  Sum. 
Ass.  1851,  where  Erie,  J.,  admitted  evidence  on  the  voire  dire  to  show  that  a 
document  was  inadmissible  as  being  a  privileged  communication  to  an  attorney  ; 
and  see  Jacobs  v.  Lahourn,  12  M.  &  W.  685;  Attorney-General  v.  Hitchcock,  1 
Ex.  95,  per  Parke,  B.,  and  next  note. 

8  Harvey  v.  Mitchell,  2  M.  &  Rob.  366 ;  and  see  5  Q.  B.  (48  E.  C.  L.  R.)  187  ; 
Smith  v.  Sleap,  1  C.  &  K.  (47  E.  C.  L.  R.)  48. 

"  Nicholson  v.  Brook,  2  Ex.  214;  Sparkes  v.  Barrett,  8  C.  &  P.  (34  E.  C.  L. 
R.)  442;  Macon  v.  Ditchhourne,  1  M.  &  Rob.  462;  4  Camp.  174. 

'  Seale  v.  Evans,  7  C.  &  P.  (32  E.  c".  L.  R.)  593. 


NATURE     OF    EVIDENCE    TO     BE    ADDUCED.  615 

merit  appeared  by  different  attorneys  and  counsels,  but  they  supported 
the  same  title,  only  one  of  these  counsel  was  allowed  to  address  the 
jury.J  One  of  two  defendants  in  trover  appeared  by  counsel,  and  the 
other  in  person;  it  was  held,  that  the  defence  being  joint  and  by 
one  attorney,  the  counsel  only  could  address  the  jury,  but  the  party 
might  cross-examine  the  witnesses.''  But  where  parties  appear  by 
separate  attorneys  and  counsel,  and  their  interests  are  distinct,  the 
counsel  for  each  may  cross-examine  and  address  the  jury.'  And 
where  after  a  plea  in  abatement  for  nonjoinder  of  P.  and  others,  the 
plaintiff  brought  an  action  including  them,  to  wliich  action  P.  pleaded 
separately  7io)i  assumpsit,  the  counsel  for  the  original  defendants  pro- 
posed to  prove  that  P.  was  liable,  held  that  P.  s  counsel  should 
address  the  jury  after  the  proposed  evidence  was  given."' 

*A  plaintiff  is  not  precluded  from  recovering  on  any  de- 
mand  to  which  he  shows  himself  to  be  legally  entitled  by  ^  J 
the  allegations  on  the  record  and  the  evidence,  although  his  counsel 
may  not,  in  opening  his  case  to  the  jury,  have  insisted  on  that  de- 
mand. Thus,  in  an  action  on  a  policy  of  insurance,  with  the  money 
counts,  where  the  defendant  showed  that  the  risk  had  never  com- 
menced, it  was  held  that  the  plaintiff  was  entitled  to  the  premium, 
although  no  claim  had  been  made  to  it  originally  by  his  counsel.'"™ 

Where  there  are  several  issues  on  pleas  by  diflcrent  defendants, 
and  one  will  decide  the  whole  case,  but  the  others  will  not,  the  former 
ought  to  be  tried  first:  as  where  one  pleads  in  abatement,  and  the 
other  pleads  to  the  action ;  or  where  one  pleads  to  the  action,"  and 
the  other  to  a  matter  personal  to  himself;"  or  where  in  trespass  one 
pleads  a  release,  the  other  not  guilty  or  a  justification. ^  Where  there 
are  many  issues  the  court  may  order  them  to  be  tried  separately.** 

The  order  of  priority  in  addressing  the  jury  by  difi"erent  counsel 
for  different  defendants,  and  proceeding  with  their  cases,  seems  to  be 
matter  for  the  discretion  of  the  judge.''     On    the  trial  of  an   issue 

J  Doe  V.  Tindale,  3  C.  &  P.  (14  E.  C.  L.  R.)  565. 

^  Perring  v.  Tucker,  M.  &  M.  (22  E.  C.  L.  R.)  391.  ' 

'  Ridgway  v.  Phillip,  1  C,  M.  &  R.  415  ;  King  v.  Williamson,  3  Stark.  C.  (3 
E.  C.  L.  R.)  162  ;  Masseij  v.  Go>/dc>;  4  C.  &  P.  (19  E.  C.  L.  R.)  162  -.  and  see 
Ewbank  v.  Kntting,  7  C.  B.  (62  E.  C.  L.  R  )  797. 

""  Beale  v.  Monls,  1  C.  Sc  K.  (47  E.  C.  L.  R.)  1. 

'°'"  Penson  v.  Lee,  2  B.  &  P.  330. 

"  Co.  Litt.  125;  Bro.,  Trial,  pi.  1,  pi.  48  ;  2  Rol.  Abr.  627  ;  Bac.  Abr.,  Trial,  K. 

-  Co.  Litt.  125  ;  2  Rol.  Abr.  628,  pi.  7. 

"J  Ibid. ;  Bro.,  Trial,  pi.  48  ;  Bac.  Abr.,  Trial  K. 

•>  Kemp  V.  Mackerill,  Sayer  131. 

^Fletcher  v.  Crosbie,  2  M.  &  Rob.  417.     In  criminal  cases  the  Court  will  call 


616  PROOFS. 

from  Chancery  by  plaintiff,  against  A.  B.  and  C.  D.,  to  try  wlietlier 
the  plaintiff  was  next-of-kin  to  J.  S\,  A.  B.  claimed  to  be  as  nearly 
related  to  J.  S.  as  the  plaintiff  was,  C.  B.  set  up  a  claim  inconsist- 
ent with  both  of  them ;  held  that  at  the  close  of  the  plaintiff's  case 
C  B,  must  both  open  and  prove  his  own  case,  and  that  then  A.  B. 
should  do  the  like,  the  plaintiff  having  the  general  reply  to  both.' 

*2dly.  As  to  the  nature,  quality  and  quantity  of  the  evi- 
*-         ^    dence  to  be  adduced  by  the  parties.' 

In  the  first  place,  with  respect  to  the  nature  of  the  evidence;  as 
the  business  of  trial  is  to  ascertain  the  truth  of  the  allegations  put 
in  issue,"  no  evidence  is  admissible  which  does  not  tend  to  prove  or 
disprove  the  issue  joined.^  Thus,  in  an  action  of  trespass  for  battery, 
the  defendant  cannot,  under  a  plea  of  not  guilty,  prove  that  the 
plaintiff  committed  the  first  assault,  for  that  is  not  the  issue.' 

on  the  counsel  for  different  defendants  in  the  order  they  stand  on  the  record, 
unless  they  otherwise  agree :  B.  v.  Barber  and  others,  1  Car.  &  K.  (47  E.  C.  L. 
R.)  4;u. 

»  PhiUips  V.  Willets,  2  M.  &  Rob.  319. 

*  The  nature  of  the  evidence  necessary  to  prove  particular  issues  will  be  con- 
sidered at  large  in  Vols.  II.  and  III. 

"  Prefiitory  allegations  not  denied  must  be  taken  to  be  true,  and  proof  of  them 
by  the  phiintifl'is  not  admissible.  Gwynne  v.  Sharpe,  1  Car.  &  M.  (41  E.  C.  L. 
R.)  532.  An  issue  ought  not  to  be  allowed  by  the  Court  to  be  tried  at  nisi  prius 
which  is  not  raised  by  the  pleadings,  unless  the  parties  amend  them :  Ellison  v. 
Isles,  11  A.  &  E.  (39  E.  C.  L.  R.)  665. 

^  So  where,  in  ejectment  by  a  landlord  against  a  tenant  for  breach  of  covenant, 
particulars  of  the  breaches  being  given  in  selling  hay  and  straw  off  the  premises, 
removing  manure  and  non-cultivation,  the  plaintiff  cannot  show  a  breach  of  cove- 
nant by  mismanagement  in  overcropping,  or  deviating  from  the  usual  rotation 
of  crops:  Doe  dem.  Wimiall  v.  Broad,  2  M.  &  G.  (40  E.  C.  L.  R.)  523.  Evidence 
cannot  be  received  even  of  admissions  of  a  party,  if  they  are  not  relevant  to  the 
issue  raised  by  the  pleadings,  so  that  he  may  have  an  opportunity  of  contra- 
dicting them :  Austin  v.  Chambers,  6  CI.  &  F.  4  ;  Copland  v.  Toulmin,  7  CI.  & 
F.  350  ;  Aflwood  v.  Small,  6  CI.  &  F.  234.  In  an  action  for  a  malicious  prose- 
cution for  perjury,  where  the  indictment  contained  two  assignments  of  perjury, 
if  the  plaintiff  at  the  trial  of  the  action  confine  his  case  to  one  of  them,  the 
defendant  is  not  entitled  to  prove  that  there  was  a  reasonable  and  probable 
cause  for  the  charge  contained  in  the  other  assignment:  Ellis  v.  Abrahams,  8 
Q.  B.  (55  E.  C.  L.  R.)  709.  It  is  no  objection  to  evidence  tending  to  prove  a 
criminal  charge  that  it  also  proves  another  criminal  charge  :  R.  v.  Dossett,  2  C. 
&  K.  (61  E.  C.  L.  R.)  306  ;  K.  v.  Yoke,  R.  &  R.  C.  C.  531  ;  R.  v.  Clewes,  4  C. 
&  P.  (19  E.  C.  L.  R.)  221  ;  R.  v.  Donnall,  2  C.  &  K.  (61  E.  C.  L.  R.)  308  ;  R.  v. 
Tawell,  Ibid.  309. 

'  The  necessity  for  enforcing  the  rule  that  no  evidence  can  be  admissible 
wliieh  does  not  tend  to  prove  or  disprove  the  issue  joined  is  much  stronger  in 
criminal  than  in  civil  cases:  Hudson  v.  State,  3  Cald.  355  ;  Wiley  v.  State,  Ibid. 
362  ;  Liijhlfool  v.  People,  IG  Mich.  507. 


NATURE     OF    EVIDENCE    TO     BE    ADDUCED.  617 

And  in  an  action  of  trespass  for  assault  and  battery,  under  a  plea 
of  moderate  correction  of  an  apprentice  for  misconduct,  and  a  general 
traverse  of  the  plea  {de  injurid),  it  was  held  that  the  only  question 
was  whether  the  plaintiff  had  misconducted  himself  as  an  apprentice, 
and  that  *evidence  of  excess  in  the  correction  was  not  admis- 
sible, as  the  excess  was  not  in  issue."  L         ^ 

But  although  remote  and  collateral  facts,  from  which  no  fair  and 
reasonable  inference  can  be  drawn,  are  inadmissible,  since  they  are 
at  best  useless,  and  may  be  mischievous,  because  they  tend  to  dis- 
tract the  attention  of  the  jury,  and  frequently  to  prejudice  and  mis- 
lead them;^  yet  on  the  other  hand  all  facts  and  circumstances  are 
admissible  in  evidence  which  are  in  their  nature  capable  of  affording 
a  reasonable  presumption  or  inference  as  to  the  disputed  fact.  It  is 
the  province  of  the  judge,'"  in  the  exercise  of  a  sound  discretion,  to 
discriminate  between  such  facts  as  are  connected  with  the  issue,  and 
such  as  are  merely  collateral. 

Frequently,  however,  it  is  difficult  to  ascertain  a  priori  whether 
proof  of  a  particular  fact  offered  in  evidence  will  or  will  not  become 
material,  and  in  such  cases  it  is  usual  in  practice  for  the  court  to 
give  credit  to  the  assertion  of  the  counsel  who  tenders  such  evidence, 
that  the  fact  will  turn  out  to  be  material.* 

The  following  are  instances  where  the  question  has  been  discussed 
whether  the  facts  were  sufficient  to  afford  any  inference  as  to  the 
matter  in  dispute,  and  on  that  account  admissible  in  evidence,  and 
they  will  furnish  the  best  illustration  of  the  principle. 

Thus  the  time  at  which  one  tenant  pays  his  rent  is  not  evidence  to 
show  at  what  time  another  tenant  of  the  same  landlord  and  of  the 
same  description  as  the  former  pays  his  rent.^  Nor  is  the  quality  of 
a  commodity  sold  to  one  customer  proved  by  showing  the  quality  of 
that  sold  *to  others."  Nor  is  the  fact  that  many  tradesmen  r:i-r«-iQ-| 
have  treated  the  defendant  as  a  feme  sole  evidence  that  she 
represented  herself  to  the  plaintiff  as  such.^     In  trover,  by  assignees, 

^  Penn  v.  Ward,  2  C,  M.  &  R.  338. 

y  Nothing  is  inadmissible  which  is  material  to  the  issue  joined,  to  prove  or 
disprove  it;  per  Blackstone,  J.,  Sayre  v.  Earl  of  Rochford,  Bl.  1169.  No  new 
matter  foreign  to  the  issue  joined  is  admissible  in  evidence:  per  De  Grey,  J., 
BI.  1165. 

^  Lewis  v.  Marshall,  7  M.  &  G.  (49  E.  C.  L.  R.)  743. 

»  And  see  Ilaigh  v.  Belcher,  7  C.  &  P.  (32  E.  C.  L.  R.)  389. 

''  Carter  v.  Pryke,  Peake,  C.  95.  "  Holcomhe  v.  Hewson,  2  Camp,  391. 

*  Barden  v.  De  Keverherg,  2  M.  &  W.  61 ;  Smith  v.    Wilkins,  6  C.  &  P.  (25  E. 
C.  L.  R.)  180;  Delamotte  v.  Lane,  9  C.  &  P.  (38  E.  C.  L.  R.)  261. 
37 


619  PROOFS. 

against  a  creditor  for  goods  alleged  to  have  been  delivered  to  him 
by  the  bankrupt  by  way  of  fraudulent  preference,  the  fact  that  other 
creditors  had  delivered  up  goods  received  by  them  from  the  bankrupt 
before  the  fiat,  was  held  not  to  be  evidence  for  the  plaintiffs." 

A  custom  in  one  parish,  archdeaconry,  or  manor,  is  no  evidence 
of  the  same  custom  in  another/  Por  in  these  and  other  such  cases 
there  is  no  such  connection  between  the  fact  and  the  issue  as  to 
afford  a  reasonable  inference  from  the  one  to  the  other.  Where,  on 
the  other  hand,  such  facts  are  by  any  general  link  connected  with 
the  issue,  they  bc'come  evidence.  Thus,  where  all  the  manors 
within  a  particular  district  are  held  under  the  same  tenure,  and 
the  issue  is  upon  some  incident  to  that  tenure,  the  custom  of  one 
manor  is  evidence  to  prove  that  the  same  custom  exists  in  another.^ 
And  for  a  similar  reason,  on  a  question  whether  the  Crown  in  right 
of  the  Duchy  of  Lancaster  had  the  right  to  appoint  a  coroner  for  the 
r*r'9m  ^'^'^o^'  *°f  Pontefract,  part  of  that  Duchy,  evidence  of  the 
Crown  having  appointed  coroners  in  other  parts  of  the 
Duchy,  was  held  admissible.^ 

So,  where  the  issue  is  as  to  a  particular  right  upon  a  common,  evi- 
dence is  inadmissible  of  the  existence  of  such  right  on  an  adjoining 
piece  of  common,  but  if  a  connection  between  them  be  proved,  and 
the  right  be  claimed  on  both,'  it  becomes  relevant  and  admissible. 

Thus,  where  the  question  was,  whether  a  slip  of  waste  land 
between  old  enclosures  and  the  highway  belonged  to  the  lord  of 
the  manor  or  to   the  owner  of  the  adjoining  enclosure,  it   was  held 

<=  Blacklwuse  v.  Jones,  6  Bing.  N.  C.  (37  E.  C.  L   R.)  65. 

^  Furneaux  y.  Ilidchins,  Cowp.  807;  Ending  v.  KeweU,  Str.  957,  601,  662; 
Fort.  41  ;  Doe  v.  Sisson,  12  East  62;  Marqids  of  Anylesea  v.  Hatherton,  10  M. 
&  AV.  218.  And  this  rule  applies,  although  one  manor  be  held  of  another  ;  Ibid. 
But  not  apparently  if  one  be  a  subinfeudation  from  the  other  ;  Brisco  v.  Lomax, 
8  A.  &  E.  (o5  E.  C.  L.  R.)  198;  Duke  of  So?nerset  v.  France,  infra;  Tyrrwhit 
V.  Wynne,  2  B.  &  Aid.  554.     Unless  the  custom  be  general. 

8  Champion  v.  Atkinson,  3  Keb.  90 ;  Duke  of  Somerset  v.  France,  Str.  652  ; 
Fort.  41,44;  Anylesea  v.  llatherton,  supra.  The  tenant-right  which  prevails 
through  the  manors  upon  the  border  between  England  and  Scotland,  and  the 
particuhir  cu.xtoms  which  prevail  in  the  mining  districts  of  Derbyshire  and 
Cornwall  are  of  this  kind  :  Ibid.  So,  the  same  rule  applies  to  the  free  con- 
ventioiiary  tenants  in  the  assessional  manors  in  the  Duchy  of  Cornwall  :  Howe 
V.  Brenlon,  8  B.  &  C.  (15  E.  C.  L.  R.)  758.  Although  these  are  not  manorial 
customs. 

•>  Jewison  v.  Dyson,  9  M.  &  W.  540. 

'  Morevood  v.  Wood,  4  T.  R.  157  ;  Peardon  v.  Underhill,  20  li.  .J.,  Q.  I>. 
133. 


NATURE     OF    EVIDENCE    TO     BE    ADDUCED.  620 

that  the  lord  might  give  evidence  .of  grants  by  him  of  parts  of  the 
waste  between  the  same  highway  and  the  enclosures  of  other  per- 
sons at  a  considerable  distance,  the  continuity  of  the  waste  between 
these  spots  and  the  one  in  question  being  broken  for  the  space  of 
sixty  or  seventy  yards  oidy  by  some  old  houses  and  a  bridge.''  For 
a  similar  reason,  where  a  belt  of  wood  surrounded  the  plaintiff's 
land,  but  waS  undivided  from  the  closes  adjoining,  evidence  that  the 
plaintiff  had  cut  down  the  timber  therein,  but  the  owners  of  the  ad- 
joining closes  had  not,  was  held  admissible  to  prove  that  the  belt 
belonged  to  the  plaintiff.'  Where  the  dispute  was  as  to  the  owner- 
ship of  part  of  the  bed  of  a  stream  flowing  between  the  plaintiff's 
farm  and  the  defendant's,  and  the  plaintiff  claimed  the  whole  bed  of 
the  stream  adjacent  to  his  land,  evidence  of  acts  of  ownership  ex- 
ercised by  the  plaintiff  over  the  bed  of  the  river  lower  down  the 
stream  than  the  defendant's  land  and  opposite  another  farm  belong- 
ing to  a  third  person  was  admitted.""  And  the  rule  is  the  same  as  to 
evidence  of  acts  of  ownership,  Avhether  they  are  in  parts  of  a  con- 
tinuous waste  or  common  and  exercised  upon  *the  surface  or  r^-i^oii 
in  a  mine  under  ground."  On  a  question  as  to  the  boundary 
between  the  Rochdale  and  Wakefield  manors,  it  was  admitted  that  it 
was  identical  with  that  between  Lancashire  and  Yorkshire,  and  that 
it  had  always  been  understood  to  run  over  a  mountain  district,  nearly 
north  and  south.  The  plaintiff  proved  that  Rishworth  manor  had 
anciently  been  part  of  Wakefield,  and  that  the  boundary  between 
Rishworth  and  Rochdale  was  identical  with  the  boundary  between 
Yorkshire  and  Lancashire.  He  was  admitted  to  prove  that  the 
boundary  between  Rishworth  and  Rochdale  had  always  been  under- 
stood to  be  the  highest  part  of  a  ridge  of  hills  parting  the  waters 
which  descended  to  the  east  and  west."  So,  where  a  parish  consists 
of  several  townships,  evidence  that  all  the  townships  but  one  had 
been  accustomed  to  repair  their  highways  (no  parish  surveyor  being 
appointed),  is  evidence  that  that  one  is  bound  to  repair  its  own  high- 
way s.^ 

To  prove  the  manner  of  carrying  on  trade  at  one  place,  evidence 

^  Doe  dem.  Barrett  v.   Kemj),  2  Bing.  N.  C.  (29  E.  C.  L.  R.)   102;  in  Cam. 
Scacc. 
1  Stanley  v.  White,  14  East  331. 
""  Jo7ies  V.  Williams,  2  M  &  W.  326. 
"  Taylor  v.  Parry,  1  M.  &  G.  (39  E.  C.  L.  R.)  604. 
"  Briscoe  v.  Lomax,  8  A.  &  E.  (35  E.  C.  L.  R.)  198. 
p  E.  V.  Barnoldstcick,  4  Q.  B.  (45  E.  C.  L.  R.)  499. 


621  PROOFS. 

may  be  given  of  the  manner  in  which  the  same  branch  of  trade  is 
carried  on  at  another  place.*^ 

Where  the  question  is  one  of  skill  and  judgment,  evidence  may  be 
given  of  other  facts,  which,  although  in  other  respects  collateral,  are, 
by  means  of  the  skill  and  judgment  of  the  witness,  connected  with, 
and  tend  to  elucidate  the  issue/ 

So,  evidence  of  character  is  in  many  instances  admissible/  So, 
collateral  facts  are  admissible  to  prove  malice,  intention,  or  guilty 
knowledge.' 

In  an  action  for  a  malicious  prosecution,  a  publication 
L  -'-'J  *|3y  the  defendant  of  an  advertisement  of  the  finding  of  the 
indictment  and  other  matter  on  the  subject  of  the  prosecution,  is 
evidence  to  prove  the  malice."  So,  although  acts  done  subsequent 
to  a  contract  cannot  alter  the  nature  of  the  contract,  they  may  be 
adduced  to  show  what  the  contract  was,  if  it  be  doubtful ;"  therefore, 

■J  Noble  y.  Kennoway,  Doug.  510;  see  Milward  v.  Hibbard,  3  Q,  B.  (43  E.  C. 
L.  R.)  120. 

'  The  Wells  Harbor  case,  M.  23  Geo.  III. 

^  See  tit.  Character. 

'  Thus,  on  a  charge  of  knowingly  uttering  a  forged  note  or  counterfeit  coin,  the 
possession  or  uttering  of  other  forged  notes,  though  of  a  different  description, 
and  other  counterfeit  coin  [BalVs  case,  1  Camp.  324;  Wylie's  case,  1  N.  R.  92; 
Millard's  case,  R.  &  R.  243) ;  R.  v.  Balls,  7  C.  &  P.  (32  E.  C.  L.  R.)  426 ;  is  ad- 
missible to  prove  the  guilty  knowledge.  So,  on  a  charge  of  receiving  stolen 
goods,  the  receipt  by  the  prisoner  at  different  times  of  several  ai'ticles  stolen 
from  the  prosecutor,  was  admitted  to  prove  guilty  knowledge  :  Dumi's  case,  1 
Mood.  C.  C.  150.  But  the  possession  of  other  goods  of  the  same  sort  as  those 
stolen,  belonging  to  a  third  person  from  whom  they  had  been  stolen,  cannot  be 
given  in  evidence  on  an  indictment  for  receiving  the  prosecutor's  goods  knowing 
them  to  have  been  stolen :  The  Queen  v.  Oddy,  20  L.  J.,  M.  C.  198.  See  tit. 
Forgery,  Coin. 

"  Chambers  v.  Robinson,  Str.  691.  So,  his  misconduct  towards  a  person  prose- 
cuted jointly  with  the  plaintiff:  Caddy  v.  Barlow,  1  M.  &  R.  (17  E.  C.  L.  R.)  275. 
So,  endeavoring  to  stop  a  witness  by  indicting  him  for  perjury,  may  be  such  evi- 
dence :  Haddrick  v.  Heslop,  12  Q.  B.  (64  E.  C.  L.  R.)  267  ;  Roivlands  v.  Samuel, 
II  Q.  B.  (63  E.  C.  L.  R.)  40,  n.  A  witness  who  preferred  the  indictment  may 
be  asked  whether  the  defendant  desired  him  not  to  prosecute,  although  he  can- 
not be  asked  generally  what  the  defendant  said  to  him  :  Osterman  v.  Bateman, 
2  C.  &  K.  (61  E.  C.  L.  R.)  728. 

*  Saville  v.  Robertson,  4  T.  R.  720.  In  an  action  for  making  and  fixing  iron 
railing  to  houses  belonging  to  the  defendant,  the  defence  was,  that  the  credit  was 
given  to  one  Amos,  who  built  the  houses  under  a  contract  with  the  defendant. 
Amos  having  stated  that  the  order  was  given  by  him,  it  was  held  that  he  might 
be  asked  how  the  balance  of  the  account  was  between  him  and  the  defendant, 
including  the  charge  he  had  against  him  for  the  iron  railings  and  other  parts  of 
the  building:   Gerish  v.  Chartier,  1  C.  B.  (50  E.  C.  L.  R.)  13. 


VARIANCES — SURPLUSAGE.  622 

an  admission  of  debt  by  the  acceptance  of  bills  of  exchange  by 
partners,  in  payment  of  goods  sold,  is  evidence  to  show  the  facts  of 
a  sale  to  the  partners/  In  trover  by  assignees  of  a  bankrupt,  where 
the  defendant  claimed  the  goods  under  a  bill  of  sale  from  (7.,  who 
claimed  by  assignment  from  B.,  and  B.  by  assignment  from  the 
bankrupt,  and  the  plaintiffs  asserted  that  all  these  transactions  were 
fictitious,  the  fact  of  C.  having  made  a  claim  to  the  goods  after  the 
*bankruptcy,  was  held  admissible  in  proof  of  that  assertion/  poo-\ 
So,  where  the  meaning  of  the  terms  of  an  agreement  is  '-  '^''*-' 
doubtful,  and  depends  on  custom  or  usage,  collateral  evidence  is  ad- 
missible to  explain  them.* 

In  order  to  prove  that  the  acceptor  of  a  bill  of  exchange  knew 
the  payee  to  be  a  fictitious  person,  evidence  is  admissible  to  show  that 
the  acceptor  had  accepted  similar  bills  before  they  could,  according  to 
their  date,  have  arrived  from  the  place  of  date.**  And  similar  evi- 
dence is  admissible  to  prove  that  the  endorsee  had  a  general  authority 
from  the  acceptor  to  fill  up  bills  with  the  name  of  a  fictitious  payee." 

But  where  the  defence  of  the  acceptor  to  an  action  by  the  endorsee 
was  that  the  acceptance  was  a  forgery,  evidence  that  a  collection  of 
bills  in  which  the  defendant's  acceptance  was  forged  had  been  in  the 
plaintiff's  possession  and  some  of  them  circulated  by  him,  but  there 
was  no  proof  that  the  bill  in  question  was  part  of  that  collection, 
the  evidence  was  rejected,  as  it  clearly  would  have  been  on  an  indict- 
ment for  forgery.*^ 

A  collateral  fact  is  not,  in  general,  evidence  to  discredit  a  witness.* 
But  where  a  witness  swore  that  a  party  had  acknowledged  two  instru- 
ments to  have  been  made  by  him,  evidence  was  admitted  that  one  of 
them  was  forged.^ 

So,  collateral  evidence  is   admissible  to  show  the  probability  of  a 

y  4  T.  R.  720,  supra.  "■  Ford  v.  Elliott,  4  Ex.  78. 

*  See  tit.  Parol  Evidence. 

''  Gibson  v.  Hinder,  2  II.  B.  288.  So,  one  felony  may  be  evidence  on  an  indict- 
ment for  another,  as  uttering  other  forged  notes,  administering  poison  on  another 
occasion,  having  previously  fired  another  rick,  &c.  :  R.  v.  Dossett,  2  C.  K.  (61 
E.  C.  L.  R.)  308.  So,  if  several  distinct  felonies  be  so  connected  together  as  to 
form  part  of  one  transaction,  they  may  all  be  evidence  on  a  charge  of  commit- 
ting one  of  them :  B.  v.  Ellis,  6  B.  &  C.  (13  E.  C.  L.  R.)  145  ;  R.  v.  Long,  6  C. 
&  P.  (25  E.  C.  L.  R.)  179 :  R.  v.  Wi/lie,  1  N.  R.  94. 

"  Gibson  v.  Hunter,  supra. 

^  Griffiths  V.  Payne,  11  A.  &  E.  (39  E.  C.  L.  R.)  131. 

«  See  ante,  pp.  237,  240;  and  R.  v.  Watson,  2  Starkie,  C.  (3  E.  C.  L.  R.)  149. 

'Ann.  311. 


623  PROOFS. 

surrender  by  a  tenant  for  life,  where  the  possession  has  long  accom- 
panied the  recovery.^ 

r*«9n  *'^^  ^^^  main  object  of  pleadings  between  the  parties  is  to 
'-  "  -^  define  and  ascertain  the  questions  in  controversy,  and  to  ap- 
prise the  adversary  of  the  nature  of  the  evidence  to  be  adduced 
against  him,  and  which  he  will  have  to  meet,  it  is  essential  to  the 
purposes  of  substantial  justice  that  these  allegations  should  be  estab- 
lished by  corresponding  proof.  In  general,  therefore,  every  material 
and  essential  allegation  in  the  charge  or  the  defence,  and  every  cir- 
cumstance descriptive  of  anything  so  alleged,  must,  if  disputed,  be 
proved  in  substance  as  averred. 

The  same  reasons  which  require  the  cause  of  action,  or  of  criminal 
charge,  to  be  stated  upon  the  record,  require  also  that  the  allegations 
shall  be  proved :  mere  assertion  without  corresponding  proof  would 
be  nugatory.  And  as  such  allegations  and  proofs  are  to  answer  cer- 
tain legal  purposes,  it  necessarily  follows  that  it  is  always  for  the 
court  to  pronounce  whether  the  facts  proved  satisfy  the  allegations  on 
the  record. 

As  questions  of  variance  are  of  daily  occurrence,  it  may  not  be 
improper  here,  before  the  decisions  on  the  subject  are  noticed,  to 
eater  into  a  brief  consideration  of  the  principles  upon  which  the 
doctrine  is  founded.  With  respect  to  the  proof  of  the  facts  and  cir- 
cumstances alleged,  three  predicaments  may  occur :  they  are  either 
all  proved  as  alleged  ;  or  none  of  them  are  proved ;  or  part  are 
proved  wholly  or  partially,  and  the  rest  are  either  not  proved,  or  ab- 
solutely disproved  or  negatived.  The  last  of  these  predicaments  is 
of  course  the  only  one  which  can  afford  ground  for  discussion. 

Now,  considering  that  all  human  affairs  and  dealings  are  connected 
together  by  innumerable  links  and  circumstances,  forming  one  vast 
context,  without  any  chasm  or  interruption,  and  undistinguished  by 
the  artificial  boundaries  and  definitions  of  right  and  wrong  prescribed 
by  the  law,  it  is  in  the  nature  of  things  impossible,  that  a  transaction 
detailed  upon  the  record  can  be  identical  with  the  one  proved,  if  the 
proof  vary  in  the  slightest  particular,  be  it  in  its  own  nature  ever  so 
insignificant. 

^  ^  ^  *An  act  done  at  one  day  or  place  cannot  be  the  same  with 
r*6251 

•-  -'an  act  done  on  another  day,  or  at  a  different  place  ;  a  rob- 
bery, where  ten  sovereigns  were  stolen,  cannot  be  the  same  with  a 
robbery  where  nine  only  were  taken.  It  is  easy,  therefore,  to  see 
that  to  require  this,  as  it  were,  natural  and  absolute  identity  of  the 
8  See  2  Saund.  175  d,  n.  {a). 


VARIANCES — PARTIAL  PROOF.  625 

allegations  and  proofs  would  be,  at  the  least,  highly  inconvenient,  if 
not  wholly  impracticable.  Hence  it  is,  that  an  artificial  and  legal 
identity,  as  contradistinguished  from  a  natural  identity,  must  be  re- 
sorted to  as  the  proper  test  of  variance;  that  is,  it  is  sufficient  if  the 
proofs  correspond  with  the  allegations,  in  respect  of  those  facts  and 
circumstances  which  are,  in  point  of  law,  essential  to  the  charge  or 
claim.  The  rules  which  govern  the  connection  between  the  allega- 
tions and  evidence  must  obviously  result  immediately  from  the  prin- 
ciples which  regulate  the  allegations  themselves. 

By  the  rules  of  law,  specific  remedies  or  punishments  are  annexed 
as  incidents  to  certain  defined  combinations  of  circumstances.  And, 
in  order  to  the  practicable  application  of  such  remedial  and  prohibi- 
tory definitions,  it  is  necessary  that  the  facts  and  circumstances  of 
each  individual  case,  corresponding  with  the  legal  definition,  but 
amplified  and  particularized  according  to  certain  technical  legal 
rules,  should  be  detailed  upon  the  record.  And  this  principally  with 
a  view  to  the  following  objects  :  fo'sf,  to  apprise  the  defendant  of  the 
specific  nature  of  the  claim  or  charge  which  is  made  against  him  ; 
secondly,  to  enable  the  court  to  adjudge  whether  the  circumstances 
stated  fall  within  any  remedial  or  prohibitory  law,  and  to  pronounce 
the  proper  judgment  if  the  facts  alleged  be  established  ;  and  thirdly, 
to  enable  the  parties  to  avail  themselves  of  the  verdict  and  judgment 
should  the  same  rights  or  liabilities  be  again  discussed.  When,  there- 
fore, in  addition  to  the  facts  which  are  essential  to  the  claim  or  charge, 
others  are  alleged  which  are  wholly  redundant  and  useless,  the  legal 
maxim  applies,  ^^  Utile  per  inutile  non  vitiatur  ;"  and  as  the  law  did 
not  require  the  superfluous  *circumstances  to  be  alleged,  so,  r*p9£»-| 
although  they  have  been  improvidently  stated,  the  law  in 
furtherance  of  its  object  rejects  them  as  mere  surplusage,  and  no  more 
regards  them  for  the  purpose  of  proof  than  if  they  had  not  been 
alleged  at  all. 

It  would  be  nugatory  to  require  proof  of  allegations  which  are 
wholly  impertinent ;  the  identity  of  those  allegations  which  are 
essential  to  the  claim  or  charge,  with  the  proofs,  is  all  that  is  mate- 
rial. Therefore,  it  is  a  general  rule  that  whenever  an  averment  may 
be  wholly  rejected,  without  prejudice  to  the  charge  or  claim,  proof  is 
unnecessary.'' 

^  See  the  observations  of  Lawrence,  J.,  in  Williamson  v.  Allison,  2  East  452, 
and  of  Lord  Tenterden,  C.  J.,  3  B.  &  C.  (10  E.  C.  L.  R.)  122.  And  see  instances 
of  this  rule,  Votcles  v.  Miller,  3  Taunt.  137  ;  Bromfield  v.  Jones,  4  B.  &  C.  (10 
E.  C.  L.  R.)  380;  Tanner  v.  Bean,  4  B.  &  C.  (10  E.  C.  L.  R.)  312;  Draper  v. 
Garratt,  2  B.  &  C.  (9  E.  C.  L.  R.)  2 ;  Lord  Churchill  v.  Hunt,  2  B.  &  Aid.  685. 


626  PROOFS. 

Thus,  if  it  were  alleged  that  A.,  being  armed  with  a  bludgeon  and 
disguised  with  a  visor,  feloniously  stole,  took,  and  carried  away  the 
watch  of  B.,  that  A.  was  armed  and  disguised,  being  altogether 
foreign  to  a  charge  of  larceny,  would  be  rejected,  and  would  require 
no  proof  on  the  trial.* 

The  same  principle  extends  much  further  ;  it  frequently  happens 
that  the  evidence  fails  to  prove  circumstances  not  altogether  imperti- 
nent, but  which  are  either  merely  cumulative  or  only  affect  the  mag- 
nitude or  extent^  of  the  claim  or  charge ;  and  here,  although  circum- 
_^„  stances  are  *alleged,  which,  if  proved,  would  have  been  of 
legal  importance,  yet,  although  the  evidence  fail  to  establish 
the  whole  of  what  is  alleged,  the  principle  adverted  to  still  operates  to 
give  effect  to  what  is  proved  to  the  extent  to  which  it  is  proved. 
The  principles  which  require  the  cause  of  action  or  ground  of  offence 
to  be  stated,  are  satisfied ;  the  adversary  is  not  taken  by  surprise, 
for  no  fact  is  admitted  in  evidence  which  is  not  alleged  against  him  ; 
and  the  court  is  enabled  to  pronounce  on  the  legal  effect  of  the  part 
which  is  established  as  true  by  the  verdict  of  the  jury,  and  the 
record  shows  the  real  nature  and  extent  of  the  right  or  liability 
established. 

Thus,  if  an  indictment  or  declaration  charge  a  defendant  with  hav- 
ing composed,  printed  and  published  a  libel,  he  may  be  found  guilty 
of  the  printing  and  publishing  only.^  So,  if  A.  be  charged  with 
feloniously  killing  B.  of  malice  prepense,  and  all  but  the  fact  of 
malice  prepense  be  proved,  A.  may  clearly  be  convicted  of  man- 

'  /.  e.  on  an  indictment  foi*  larceny.  So  where  an  indictment  for  robbery 
alleged  it  to  have  been  committed  in  the  dwelling-house  of  A.  B.,  a  variance  in 
the  name  of  the  owner  was  held  wholly  immaterial,  for  it  was  not  essential  to 
the  crime  of  robbery  that  it  should  be  committed  in  a  dwelling-house :  Pye's 
case,  East  P.  C.  785 ;  Johnson'' s  case,  Ibid.  786.  So,  if  arson  be  alleged  to  have 
been  committed  in  the  night:  Mustoii' s  case,  East  P.  C.  1021. 

^  Thus,  averments,  which  are  only  material  by  way  of  aggravation,  either  of 
damages  or  the  charge,  if  not  proved,  may  be  rejected  :  Fallant  v.  Roll,  Bl. 
900 ;  Maclcalhfs  case,  9  Co.  61 ;   Combe  v.  Pitt,  3  Burr.  1586. 

'  R.  V.  Williams,  2  Camp.  507  ;  R.  v.  Hunt,  Ibid.  583.  So,  in  an  action  for 
words,  it  suffices  to  prove  so  much  of  the  words  in  any  one  count  as  are  action- 
able :  Comjyagnon  v.  Martin,  \V.  Bl.  790.  So,  it  is  sufficient  to  prove  part  of  the 
false  pretences  alleged  in  an  indictment  for  obtaining  money  by  those  means : 
Rex  v.  mil,  Russ.  &  R.  C.  C.  190,  So  if  a  plaintiff  prove  part  of  his  breach  of 
covenant:  Barnard  v.Duthy,  5  Taunt.  (1  E.C.  L.  R.)  27;  or  promise:  Gardiner 
V.  Crosedale,  W.  Bl.  198.  And  see  further  instances,  R.  v.  Sutton,  4  M.  &  S. 
532;  Coml)e  v.  Pitt,  3  liurr.  158G  ;  Smith  v.  Hixon,  Str.  977;  Roberts  et  ux.  v. 
IlerOert,  1  Sid.  5 ;  Spilshury  v.  Micklethwaiie,  1  Taunt.  146. 


VARIANCES — DESCRIPTIVE    ALLEGATIONS.  627 

slaughter,  for  the  indictment  contains  all  the  allegations  essential  to 
that  charge;  A.  is  fully  apprised  of  the  nature  of  it,  the  verdict 
enables  the  court  to  pronounce  the  proper  judgment,  and  A.  may 
plead  his  acquittal  or  conviction  in  bar  of  any  subsequent  indictment 
founded  on  the  same  facts. 

The  same  principle  applies  to  allegations  of  number,  quantity 
and  magnitude,™  where  the  proof,  pro  tanto  *supports  the  r*«9Q-i 
claim  or  charge.  If  a  man  be  charged  with  stealing  ten 
sovereigns,  he  may  be  convicted  of  stealing  five;  for  when  it  is 
proved  that  he  stole  five,  and  the  precise  sum,  quantity  or  magnitude 
alleged  is  not  put  in  issue  by  the  nature  of  the  claim  or  charge,"  evi- 
dence is  not  admitted  of  a  different  offence  from  that  charged,  but 
of  the  same  in  legal  essence,  differing  only  in  quantity,  and  consti- 
tuting, therefore,  a  natural,  but  no  legal  variance ;  no  evidence  is 
received  which  is  not  warranted  by  the  allegation,  and  the  party  may 
afterwards  plead  his  conviction  or  acquittal,  notwithstanding  the  vari- 
ance as  to  number. 

But  the  doctrine  as  to  the  sufficiency  of  partial  proof  assumes  that 
the  evidence,  so  far  as  it  extends,  agrees  with  the  allegations  legally 
essential  to  the  charge  or  claim ;  that  is,  that  what  is  proved  is  part 
of  what  is  alleged,  and  differs  only  in  quantity  or  extent.  Where 
an  allegation  is  rejected  in  toto,  it  is  assumed  that  the  allegations  are 
divisible,  and  that  the  averment  in  question  may  be  so  rejected  with- 
out destroying  the  legal  identity  of  the  charge  or  claim. 

It  is  a  most  general  rule  that  no  allegation  which  is  descriptive  of 
the  identity  of  that  which  is  legally  essential  to  the  claim  or  charge 
can  ever  be  rejected.  Were  it  otherwise,  and  if  groof  could  be  ad- 
mitted which  varied  from  the  record,  in  consequence  of  the  omission 
to  prove  any  allegation  descriptive  of  an  essential  particular,  it  is 
plain  that  the  proof  would  no  longer  agree  with  the  cause  of  action, 
or  charge  alleged,  to  a7iy  extent;  they  would  differ  throughout  in^ re- 
spect of  that  descriptive  allegation  ;  *and  as  the  proof  would 
be  more  general  than  the  allegations,  it  would  no  longer  be    ^         -I 

™  Thus,  in  an  action  for  waste,  or  cutting  down  trees,  it  is  sufficient  to  prove 
that  the  defendant  cut  down  part  of  the  number  alleged  :  2  Roll.  Abr.  706 ; 
Hob.  53.  So,  in  ejectione  firmoi  for  a  fourth  part  of  an  estate,  the  plaintiff 
may  recover  a  third  of  a  fourth :  1  Sid.  239 ;  Denn  v.  Purvis,  1  Burr.  327  ; 
Gwinnett  v.  Phillips,  3  T.  R.  643  5  Harrison  v.  Barnbtj,  5  T.  R.  248  ;  Forty  v. 
Imber,  6  East  434 ;  R.  v.  Gilham,  6  T.  R.  265 ;  Powell  v.  Farmer,  Peake,  C.  57 ; 
Doe  V.  Jackson,  Dougl.  175. 

"  Grant  v.  Astle,  Dougl.  722,  note  ;  Gilbert  v.  Stanislaus,  3  Price  54  ;  Hare  v. 
Cator,  Cowp.  766. 


629  PROOFS. 

partial  proof  of  the  same  charge  or  claim,  but  of  a  difFerent  and 
more  general  one.  As  an  absolute  and  vafural  identity  of  tlie  claim 
or  charge  alleged  with  that  proved,  consists  in  the  agreement  between 
them  in  all  particulars,  so  their  legal  identity  consists  in  their  agree- 
ment in  all  the  particulars  legally  essential  to  support  the  charge  or 
claim;  and  the  identity  of  those  particulars  depends  wholly  on  the 
proof  of  the  allegations  and  circumstances  by  which  they  are  ascer- 
tained, limited  and  described.  To  reject  any  allegation  descriptive 
of  that  which  is  essential  to  the  charge  or  claim  would  obviously  tend 
to  mislead  the  adversary.  The  court,  in  giving  judgment  on  a  general 
verdict,  could  never  be  sure  that  those  facts  had  been  proved  which 
were  essential  to  support  their  judgment ;  and  the  record  would  afford 
but  very  uncertain  evidence  as  to  identity,  should  the  same  matter  be 
again  litigated.  It  is  otherwise  where  the  subject-matter  is  identified 
and  ascertained  independently  of  the  additional  description,  or  where 
the  additional  description  is  not  essential  to  the  identity  of  the  subject- 
matter  described  ;  as  if  it  were  alleged  that  C  D.  robbed  or  assaulted 

A.  B.,  wearing  a  black  coat.° 

It  seems,  indeed,  to  be  an  universal  rule,  that  a  plaintiff  or  prose- 
cutor shall  in  no  case  be  allowed  to  transgress  those  limits  which,  in 
point  of  description,  limitation  and  extent,  he  has  prescribed  for 
himself;  he  selects  his  own  terms,  in  order  to  express  the  nature  and 
extent  of  his  charge  or  claim  ;  he  cannot,  therefore,  justly  com- 
plain that  he  is  limited  by  them  ;  to  allow  him  to  exceed  them 
^  ^^^^  *would,  for  the  reasons  adverted  to,  be  productive  of  the 
•-  -^    greatest  inconvenience. 

As  no  allegation,  therefore,  which  is  descriptive  of  any  fact  or 
matter  which  is  legally/  essential  to  the  claim  or  charge,  can  be  re- 
jected altogether,  inasmuch  as  the  variance  destroys  the  legal  identity 
of  the  claim  or  charge  alleged  with  that  which  is  proved ;  upon  the 
same  principle,  no  allegation  can  be  proved  partially  in  respect  of 
extent  or  magnitude,  where  the  precise  extent  or  magnitude  is  in  its 
nature  descriptive  of  the  charge  or  claim. 

If,  in  an  action  or  indictment  for  a  nuisance,  the  wrong  be  alleged 
to  have  been  continued  for  twelve  months,  and  proof  be  given  that  it 

°  Sec  Draper  v.  Garratt,  2  B.  &  C.  (9  E.  C.  L.  R.)  2;  Stoddart  v.  Palmer,  3 

B.  &  C.  (10  E.  C.  L.  R.)  2.  Thus,  where  a  justification  in  trespass  alleged  that 
the  plaintiff  was  fighting  with  another  person,  being  a  passenger  with  the  plain- 
tiff on  Ijoard  a  vessel  of  which  the  defendant  was  captain  ;  and  that  the  trespass 
was  committed  Jjy  the  defendant  as  captain  in  preserving  the  peace,  it  was  held 
unnecessary  to  prove  such  other  person  to  have  been  a  passenger :  Noden  v. 
Johnson,  20  L.  J.,  Q.  B.  95. 


VARIANCES — REDUNDANT    PROOF.  630 

has  been  continued  for  one  month  only,  the  variance  would  be  imma- 
terial, except  so  far  as  regarded  the  damages  or  punishment ;  for  the 
injury  or  offence  would  in  point  of  law  be  the  same,  whether  continued 
for  one  month  or  for  twelve;  the  only  difference  would  be  in  point  of 
duration. 

But  if  a  contract  were  to  be  alleged  to  serve  for  twelve  months  for 
the  sum  of  £12,  and  proof  were  to  be  given  of  a  contract  to  serve 
for  one  month  for  the  sum  of  XI,  the  variance  would  be  material; 
the  precise  time,  as  well  as  the  precise  sum,  being  essential  to  the 
contract,  and  descriptive  of  the  ground  of  claim.  For  although  a 
nuisance  continued  for  twelve  months  be  an  offence  made  up  of  the 
continuance  for  each  of  the  several  months  which  make  up  the 
twelve ;  a  contract  to  serve  for  twelve  months  for  c£12  is  not  made  up 
of  twelve  contracts  to  serve  for  a  month  for  <£1  each  month,  but  each 
is  separate  and  distinct  in  point  of  law. 

The  same  observations  apply  to  proscriptions,  and  all  other  cases 
where  precise  quantities,  sums,  duration  or  extent,  are  in  point  of 
law  essential  to  the  identity  of  an  entire  subject-matter,  and  descrip- 
tive of  it.P 

*Again,  as  the  description  of  facts  upon  the  record  must    ^     ^ 
.  .    .  .  .  r*6311 

necessarily  be  finite  and   limited,  whilst  the  detail  of  those    *-         -' 

facts  in  evidence  must  usually  be  attended  with  a  multitude  of  par- 
ticular circumstances  connected  with  them,  it  is  perfectly  clear  that 
whatever  minuteness  of  description  may  be  requisite  in  stating  the 
claim  or  charge  upon  the  record,  the  evidence  to  prove  those  allega- 
tions must  usually  be  still  more  particular  and  circumstantial,  and 
consequently  that  the  proof  of  more  particulars^  than  are  alleged 
can  never  be  material,  provided  such  additional  particulars  consist 
with  those  which  are  alleged.  The  generality  of  the  allegations  may 
indeed  constitute  a  vice  in  the  record  itself;  but  it  never  gives  rise 
to  the  objection  of  variance  from  the  evidence,  unless  the  subject  be 
of  so  entire  a  nature  that  the  matter  proved,  but  not  alleged,  is  in- 
consistent with  that  which  is  alleged,  and  disproves  it  altogether. 

P  The  question  whether  an  averment  is  to  be  considered  as  descriptive,  and 
therefore  material,  depends  principally  upon  the  nature  of  the  averment  itself 
and  the  subject  matter  to  which  it  is  applied.  But,  2dly,  in  many  instances 
the  law  pronounces  averments  to  be  merely  formal,  which  would  otherwise, 
according  to  the  ordinary  rule,  be  deemed  descriptive.  3dly,  in  other  instances 
again,  the  question  depends  upon  the  particular  and  technical  mode  in  which 
the  averment  is  framed.  As  these  three  classes  obviously  depend  upon  the 
form  of  the  averment,  for  the  reason  presently  mentioned,  instances  of  them 
will  be  reserved  for  Vol.  III.,  tit  Variance. 


631  PROOFS. 

If  a  man  were  charged  with  stealing  a  horse,  the  property  of  Jolm 
Doe,  generally,  it  would  be  no  objection  that  on  the  evidence  it  ap- 
peared that  there  were  two  persons  of  that  name,  the  elder  and  the 
younger ;  for  if  he  stole  the  horse  of  either,  the  allegation  would  be 
true.  But  if  he  were  to  be  charged  with  stealing  the  horse  of  John 
Doe,  and  it  turned  out  that  the  horse  was  the  property  of  John  Doe, 
and  James  Doe,  the  variance  might  be  material ;  for  the  interest  of 
James  Doe,  thus  proved  but  not  alleged,  would  show  that  the  owner- 
ship was  misdescribed  altogether. 

The  general  result  of  these  principles  and  inferences  seems  to  be, 
that  in  the  case  of  redundant  allegations,  it  is  sufficient  to  prove  j)art 
of  what  is  alleged  according  to  its  Hegal  effect,  provided  that 
L  "^^  that  which  is  alleged,  but  not  proved,  be  neither  essential  to 
the  charge  or  claim,"*  nor  describe  or  limit  that  which  is  essential  ;^ 
and  provided  also,  that  the  facts  proved  be  alone  sufficient  in  law  to 
support  the  charge  or  claim.  And  that  redundancy  of  proof  will 
not  be  material,  unless  that  Avhich  is  proved,  but  not  alleged,  contra- 
dict or  disprove  that  which  is  alleged. 

Numerous  instances  of  the  practical  results  of  the  rules  which 
have  been  thus  briefly  stated  are  to  be  found  in  the  books.  These, 
of  course,  have  been  decided  upon  the  application  of  them  to  the 
precise  forms  of  the  allegations  contained  in  the  pleadings.  As 
these  forms  will,  within  a  very  short  period,  in  all  probability,  undergo 
a  most  extensive  change,  it  will  be  expedient  to  defer  any  detail  of 
the  cases  to  a  future  volume.  Under  the  heads  too  of  the  various 
actions  illustrations  of  these  rules  will  be  found,  and  were  the  cases 
to  be  detailed  here,  very  great  inconsistency  might  occur  between 
the  different  portions  of  the  work.  Those  cases,  therefore,  which 
may  continue  to  serve  any  useful  purpose  will  be  collected  and  set 
forth  hereafter.^ 

It  is  almost  unnecessary  to  remark,  that  the  consequence  of  any 
variance  which  according  to  these  rules  was  regarded  as  material, 
however  slight  it  might  be,  was  fatal ;  and  hence  arose  a  practice  of 
setting  forth  any  claim  or  defence  in  every  possible  form  in  different 
counts  or  pleas.  The  greatest  injustice  also  constantly  occurred, 
from  mere  literal  variances  in  setting  forth  written  documents  upon 

-»  Per  Al)hott,  C.  J.,  3  B.  &  C.  (10  E.  C.  L.  K.)  122 :  "  It  is  a  general  rule  that 
a  variance  between  the  allegation  and  proof  will  not  defeat  a  party,  unless  it  be 
in  respeut  of  matter  which  if  pleaded  would  be  material." 

^  See  the  observations  of  Abbott,  C.  J.,  2  B.  &  Aid.  363. 

'  See  Vol.  III.,  tit.  Variance. 


VARIANCES  —  AMENDMENT.  632 

the  record.     These  too  were  fatal,  for  the  court  had  no  power  of  re- 

concilinff  the  record  with  the  evidence.     This  *was  the  worst 

.  r*0331 

and  most  palpable  class.     But  there  were  also  cases  in  which    ^     '    J 

it  became  evident  upon  the  trial,  that  a  real  dispute  existed  between 
the  parties  requiring  the  decision  of  a  court  of  law  ;  but  the  question 
evolved  upon  the  pleadings  differing  in  some  particulars  from  that 
upon  which  the  real  dispute  between  the  parties  turned,  the  evidence, 
although  perhaps  decisive  upon  the  latter  question,  would  in  all 
probability  lead  to  a  verdict  upon  the  former,  which  would  leave  the 
real  question  untouched,  while  the  parties  were  excluded  from  all 
further  remedy.  In  this  state  of  the  facts  and  of  the  pleadings  the 
parties  might  have  been  misled,  or  they  might  not.  In  the  latter 
case,  the  simple  and  most  obvious  mode  of  correcting  the  evil,  was 
to  mould  the  question  evolved  upon  the  pleadings  into  that  which 
expressed  the  dispute  between  the  parties.  With  this  view,  and  at 
the  same  time  to  preserve  the  identity  of  the  proposition  asserted  on 
the  pleadings  with  that  proved  by  the  evidence,  the  legislature  has 
introduced  a  power  of  amending  the  record,  so  as  to  make  it  corre- 
spond with  the  proof  at  the  trial. 

The  object  was  first  attempted  by  Lord  Tenterden,  in  the  stat.  9 
Geo.  IV.  c.  15,  in  cases  of  variance  between  writings  offered  in  evi- 
dence and  the  record  which  they  were  offered  to  prove.  That  stat- 
ute, after  reciting  the  great  expense,  delay  and  failure  of  justice, 
by  reason  of  variances  between  writings  produced  in  evidence  and 
the  recital  thereof  upon  the  record,  in  matters  not  material  to  the 
merits  of  the  case,  and  that  such  record  could  not  in  any  case  be 
amended  at  the  trial,  and  in  some  cases  could  not  be  amended  at  any 
time,  enacted,  "  That  it  shall  and  may  be  lawful  for  every  court  of 
record  holding  plea  in  civil  actions,  any  judge  sitting  at  Nisi  Prius, 
and  any  Court  of  Oyer  and  Terminer  and  general  gaol  delivery  in 
England,  Wales,  the  town  of  Berwick-upon-Tweed  and  Ireland,  if 
such  court  or  judge  shall  see  fit  so  to  do,  to  cause  the  record  on  which 
any  trial  may  be  pending  before  such  judge  or  court  in  any  civil 
action,  or  in  *any  indictment  or  information  for  any  misde-  r:i;pq4^-l 
meaner,  when  any  variance  shall  appear  between  any  matter 
in  writing  or  in  print  produced  in  evidence,  and  the  recital  or  set- 
ting forth  thereof  upon  the  record  whereon  the  trial  is  pending,  to 
be  forthwith  amended  in  such  particular  by  some  officer  of  the 
court,  on  payment  of  such  costs  (if  any)  to  the  other  party  as  such 
judge  or  court  shall  think  reasonable,  and  thereupon  the  trial  shall 
proceed  as  if   no   such    variance  had  appeared;    and  in    case  such 


634  PROOFS. 

trial  sliall  be  had  at  Nisi  Prius,  the  order  for  the  amendment  shall 
be  endorsed  on  the  postea,  and  returned,  together  with  the  record, 
and  thereupon  the  papers,  rolls,  and  other  records  of  the  court  from 
which  such  record  issued,  shall  be  amended  accordingly." 

The  remedial  power  thus  given  to  the  judge  in  the  cases  of 
written  evidence,  to  which  alone  it  was  applicable,  was  found  to  be 
so  beneficial,  that  by  the  Act  for  the  further  amendment  of  the  law, 
3  &  4  Will.  IV.,  c.  42,  it  was  most  materially  extended.  That 
statute  recites,  that  "  Whereas  great  expense  is  often  incurred,  and 
delay  or  failure  of  justice  takes  place  at  trials  by  reason  of  variances 
as  to  some  particular  or  particulars  between  the  proof  and  the 
record  or  setting  forth  on  the  record  or  document,  on  which  the 
trial  is  had,  of  contracts,  customs,  prescriptions,  names  and  other 
matters  or  circumstances  not  material  to  the  merits  of  the  case,  and 
by  the  misstatement  of  which  the  opposite  party  cannot  have  been 
prejudiced,  and  the  same  cannot  in  any  case  be  amended  at  the 
trial,  except  Avhere  the  variance  is  between  any  matter  in  writing 
or  in  print  produced  in  evidence  and  the  record ;  and  whereas  it  is 
expedient  to  allow  such  amendments  as  are  hereinafter  mentioned 
to  be  made  in  the  cause,"  and  therefore  enacts,  "that  it  shall  be  law- 
ful for  any  court  of  record  holding  plea  in  civil  actions,  and  any 
judge  sitting  at  Nisi  Prius,  if  such  court  or  judge  shall  see  fit  so  to 
do  to  cause  the  record,  writ  or  document,  on  which  any  trial  may 
r^oor-\  be  Spending  before  any  such  court  or  judge  in  any  civil 
action,  or  in  any  information  in  the  nature  of  a  quo  warranto 
or  proceedings  on  a  mandamus,  when  any  variance  shall  appear 
between  the  proof  and  the  recital  or  setting  forth  on  the  record,  writ 
or  document,  on  which  the  trial  is  proceeding,  of  any  contract, 
custom,  prescription,  name  or  other  matter,  in  any  particular  or 
particulars  in  the  judgment  of  such  court  or  judge,  not  material  to 
the  merits  of  the  case,  and  by  which  the  opposite  party  cannot  have 
been  prejudiced  in  the  conduct  of  his  action,  prosecution  or  defence, 
to  be  forthwith  amended  by  some  oflScer  of  the  court  or  otherwise, 
both  in  the  part  of  the  pleadings  where  such  variance  occurs,  and  in 
every  other  part  of  the  pleadings  which  it  may  become  necessary  to 
amend,  on  such  terms  as  to  payment  of  costs  to  the  other  party,  or 
postponing  the  trial  to  be  had  before  the  same  or  another  jury,  or 
both  payment  of  costs  and  postponement,  as  such  court  or  judge 
shall  think  reasonable;  and  in  case  such  variance  shall  be  in  some 
particular  or  particulars,  in  the  judgment  of  such  court  or  judge, 
not  material   to  the  merits  of  the  case,  but  such  as  that  the  opposite 


VARIANCES  —  AMENDMENT.  635 

party  may  have  been  prejudiced  thereby  in  the  conduct  of  his  action, 
prosecution  or  defence,  then  such  court  or  judge  shall  have  power  to 
cause  the  same  to  be  amended,  upon  payment  of  costs  to  the  other 
party,  and  withdrawing  the  record  or  postponing  the  trial  as  afore- 
said, as  such  court  or  judge  shall  think  reasonable,  and  after  any 
such  amendment  the  trial  shall  proceed,  in  case  the  same  shall  be 
proceeded  with,  in  the  same  manner  in  all  respects,  both  with  respect 
to  the  liability  of  witnesses  to  be  indicted  for  perjury  or  otherwise, 
as  if  no  such  variance  had  appeared ;  and  in  case  such  trial  shall  be 
had  at  Nisi  Prius,  or  by  virtue  of  such  writ  as  aforesaid,  the  order 
for  the  amendment  shall  be  endorsed  on  the  postea  or  the  writ,  as  the 
case  may  be,  and  returned,  together  with  the  record  or  wi'it,  and 
thereupon  such  papers,  rolls  or  other  records  of  the  court  from 
which  such  record  or  *writ  issued,  as  it  may  be  necessary  to  r:^,^qn-| 
amend,  shall  be  amended  accordingly;  and  in  case  the  trial  ~ 
shall  be  had  in  any  court  of  record,  then  the  order  for  amendment 
shall  bo  entered  on  the  roll  or  other  document  upon  which  the  trial  shall 
be  had.  Provided,  that  it  shall  be  lawful  for  any  party  who  is  dis- 
satisfied with  the  decision  of  such  judge  at  Nisi  Prius,  sheriif  or 
other  ofiicer,  respecting  his  allowance  of  any  such  amendment,  to 
apply  to  the  court  from  which  such  record  or  writ  issued  for  a  new 
trial  upon  that  ground  :  and  in  case  any  such  court  shall  think  such 
amendment  improper,  a  new  trial  shall  be  granted  accordingly,  on 
such  terms  as  the  court  shall  think  fit,  or  the  court  shall  make  such 
other  order  as  to  them  may  seem  meet.  And  it  is  further  enacted, 
that  the  said  court  or  judge  shall  and  may,  if  they  or  he  think  fit, 
in  all  cases  of  variance,  instead  of  causing  the  record  or  document  to 
be  amended  as  aforesaid,  direct  the  jury  to  find  the  fact  or  facts 
according  to  the  evidence,  and  thereupon  such  finding  shall  be  stated 
on  such  record  or  document,  and  notwithstanding  the  finding  on  the 
issue  joined,  the  said  court  or  the  court  from  which  the  record  has 
issued  shall,  if  they  think  the  said  variance  immaterial  to  the  merits 
of  the  case,  and  the  misstatement  such  as  could  not  have  prejudiced 
the  opposite  party  in  the  conduct  of  the  action  or  defence,  give  judg- 
ment accoiding  to  the  very  right  and  justice  of  the  case." 

Under  this  statute  the  judge  at  Nisi  Prius  will  amend  any  vari- 
ance which  does  not  really  affect  the  matter  in  dispute,  and  Avhich 
was  not  likely  to  mislead  the  opposite  party.'  Thus,  for  example, 
he  Avill  amend  the  statement  of  a  promise  in  the  declaration 
although  it  be  not  a  promise  expressly  made,  but  merely  the  legal 
'  Hemming  v.  Parri/,  6  C.  &  P.  (25  E,  C.  L.  R.)  580;  per  Alderson,  B. 


636  PROOFS. 

result  of  the  facts  there  stated,  if  it  be  incorrectly  drawn,  by  sub- 
stituting the  correct  legal  result  of  those  facts."  So  he  will 
L  -I  *amend  the  statement  of  the  nature  of  the  promise  from  an 
absolute  to  a  collateral  promise,  as  where  it  was  alleged  to  be  a  pro- 
mise to  pay  for  goods  to  be  supplied  to  a  third  person,  and  was  in 
fact  a  promise  to  guaranty  the  payment  of  such  goods,  he  will  cause 
the  term  guaranty  to  be  substituted  for  pay.''  But  where  the  con- 
sideration alleged  for  a  promise  was  that  the  plaintiff  would  make 
advances,  the  judge  refused  to  substitute  as  the  consideration  that 
the  plaintiff  would  procure  a  company  so  to  do,  although  he  was  a 
partner  in  that  company.""  Nor  will  he  amend  by  introducing  an 
entirely  different  contract,^  as  by  substituting  an  agreement  for  a 
lease,  wherein  the  breach  should  be  having  no  title  to  grant  it,  for 
the  statement  of  an  actual  demise  whereby  the  plaintiff  promised  that 
the  defendant  should  enjoy  without  eviction.'' 

By  the  stat.  14  &  15  Vict.  c.  100,  very  similar  powers  of  amend- 
ment are  extended  to  criminal  cases.  That  statute  enacts,''  "That 
whenever  on  the  trial  of  any  indictment  for  any  felony  or  misde- 
meanor there  shall  appear  to  be  any  variance  between  the  statement 
in  such  indictment  and  the  evidence  offered  in  proof  thereof,  in  the 
name  of  any  county,  riding,  division,  city,  borough,  town  corporate, 
parish,  township,  or  place  mentioned  or  described  in  any  such  indict- 
ment, or  in  the  name  or  description  of  any  person  or  persons,  or 
body  politic  or  corporate,  therein  stated  or  alleged  to  be  the  owner 
or  owners  of  any  property,  real  or  personal,  which  shall  form  the 
subject  of  any  offence  charged  therein,  or  in  the  name  or  description 
of  *any  person  or  persons,  body  politic  or  corporate,  therein 
L  *  -I  stated  or  alleged  to  be  injured  or  damaged,  or  intended  to  be 
injured  or  damaged  by  the  commission  of  such  offence,  or  in  the  chris- 
tian name  or  surname,  or  both  christian  name  and  surname,  or  other 
description  whatsoever,  of  any  person  or  persons  whomsoever  therein 

"  Whiiwell  v.  Scheer,  8  A.  &  E.  (35  E.  C.  L.  R.)  301  ;  Smith  v.  Bradshaw,  9 
Dowl.  430. 

"  Ilanbury  v.  Ella,  1  A.  &  E.  (28  E.  C.  L.  R.)  61  ;  and  see  Guest  v.  Elwes,  5 
A.  &  E.  (31  E.  C.  L.  R.)  118. 

"  Boucher  v.  Murray,  6  Q.  B.  (51  E.  C.  L.  R.)  362. 

^  Brashier  v.  Jackson,  6  M.  &  W.  549. 

y  These  instances  will  serve  to  illustrate  the  principle  on  which  the  courts 
have  acted  upon  this  statute ;  but  for  the  reason  above  mentioned  (p.  631,  note), 
such  of  the  other  decisions  as  may  hereafter  be  found  useful  will  be  collected  in 
a  future  volume,  under  the  head  of  Variance. 

•  Upon  this  statute  no  decisions  have  yet  been  reported. 


AMENDMENT  —  MATTERS     ADMITTED.  638 

named  or  described,  or  in  the  name  or  description  of  any  matter  or 
thing  whatsoever  therein  named  or  described,  or  in  the  ownership 
of  any  property  named  or  described  therein,  it  shall  and  may  be 
lawful  for  the  court  before  which  the  trial  shall  be  had,  if  it  shall 
consider  such  variance  not  material  to  the  merits  of  the  case,  and 
that  the  defendant  cannot  be  prejudiced  thereby  in  his  defence  on 
such  merits,  to  order  such  indictment  to  be  amended,  according  to 
the  proof,  by  some  officer  of  the  court,  or  other  person,  both  in  that 
part  of  the  indictment  where  such  variance  occurs,  and  in  every 
other  part  which  it  may  become  necessary  to  amend,  on  such  terms 
as  to  postponing  the  trial  to  be  had  before  the  same  or  another  jury, 
as  such  court  shall  think  reasonable;  and  after  any  such  amendment 
the  trial  shall  proceed,  wdienever  the  same  shall  be  proceeded  with, 
in  the  same  manner,  in  all  respects,  and  with  the  same  consequences, 
both  with  respect  to  the  liability  of  witnesses  to  be  indicted  for  per- 
jury and  otherwise,  as  if  no  such  variance  had  occurred ;  and  in  case 
such  trial  shall  be  had  at  Nisi  Prius,  the  order  for  the  amendment 
shall  be  endorsed  on  the  postea,  and  returned,  together  with  the  re- 
cord ;  and  thereupon  such  papers,  rolls,  or  other  records  of  the  court, 
from  which  such  record  issued  as  it  may  be  necessary  to  amend,  shall 
be  amended  accordingly  by  the  proper  officer,  and  in  all  other  cases 
the  order  for  the  amendment  shall  either  be  endorsed  on  the  indict- 
ment or  shall  be  engrossed  on  parchment,  and  filed,  together  with  the 
indictment,  among  the  records  of  the  court :  provided,  that  in  all 
such  cases  where  the  trial  shall  be  so  postponed  as  aforesaid,  it  shall 
be  lawful  for  such  court  to  respite  the  recognisances  of  the  prosecutor 
and  witnesses,  and  of  the  defendant  and  *his  surety  or  sure- 
ties, if  any,  accordingly  ;  in  which  case  the  prosecutor  and  ^  -■ 
witnesses  shall  be  bound  to  attend  to  prosecute  and  give  evidence 
respectively,  and  the  defendant  shall  be  bound  to  attend  to  be  tried, 
at  the  time  and  place  to  which  such  trial  shall  be  postponed,  without 
entering  into  any  fresh  recognisances  for  that  purpose,  in  such  and 
the  same  manner  as  if  they  were  originally  bound  by  their  recogni- 
sances to  appear  and  prosecute  or  give  evidence  at  the  time  and  place 
to  which  such  trial  shall  have  been  so  postponed  :  Provided,  also,  that 
where  any  such  trial  shall  be  to  be  had  before  another  jury,  the 
Crown  and  the  defendant  shall  respectively  be  entitled  to  the  same 
challenges  as  they  were  respectively  entitled  to  before  the  first  jury 
was  sworn." 

In  the  next  place,  it  is  a  rule,  that  no  evidence  is  necessary  to  prove 
any  material  allegation  which  is  agreed  upon   by  the  pleadings,  or 
38 


639  PROOFS. 

document,  on  which  the  trial  is  had  ;  for  the  jury  are  sworn  to  try 
the  matter  in  issue  between  the  parties,  and  no  other  question  is  be- 
fore them."  The  party  therefore  who  makes  any  material  and  traver- 
sable allegation,''  which  his  antagonist  does  not  ^traverse, 
*-  -'is  not  required  to  sustain  it  by  any  proof;  and,  for  the  same 
reason,  evidence  to  disprove  it  is  not  admissible.''  Thus,  if  the  defend- 
ant in  replevin  avow  the  taking  the  cattle  damage-feasant  in  the  locus 
in  quo,  as  parcel  in  the  manor  of  K.,  and  the  plaintiff  make  title  to 
the  manor  of  K.,  and  traverse  that  the  manor  is  the  freehold  of  the 
defendant,  the  plaintiff  cannot  prove  that  IC.  is  no  manor,  for  that  is 
admitted  by  the  traverse. **     And  the  jury  cannot  find    against   the 

»  B.  N.  P.  298  ;  Wimhish  v.  TaUhois,  Plowd.  48  ;  Dunford  v.  Tratiles,  12  M. 
&  W.  -59.  Of  course  the  admission  does  not  extend  beyond  what  is  alle^red  on 
the  record  :  Williams  v.  Sills,  2  Camp.  519.  Where  the  defendant  pleaded,  to 
an  action  of  trespass,  a  custom  applicable  to  all  farms  in  the  parish  not  ex- 
cepted by  special  agreement,  which  custom  the  plaintiff  traversed,  he  was  not 
allowed  under  this  issue  to  prove  that  his  farm  (the  locus  in  quo)  was  excepted 
by  special  agreement:  Evans  v.  Ogilvie,  2  Y.  &  J.  79.  But  a  matter  is  not  ad- 
mitted which  is  impliedly,  although  not  expressly,  traversed :  Dunstan  v.  Tresi- 
der,  5  T.  R.  2. 

"  Conling  v.  Coxe,  6  C.  B.  (60  E.  C.  L.  R.)  703  ;  King  v.  Norman,  4  C.  B.  (56 
E.  C.  L.  R.)  884 ;  Bennion  v.  Davison,  3  M.  &  W.  179  ;  Grew  v.  Hill,  3  Ex.  801 ; 
Gale  V.  Lewis,  9  Q.  B.  (58  E.  C.  L.  R.)  730.  In  trespass  for  entering  the  plain- 
tiff's house  and  taking  his  goods,  the  defendant  pleaded  a  justification  under  a 
writ  of  execution  against  the  goods  of  ^.  i?.,and  a  warrant  thereunder,  delivered 
to  the  defendant,  a  bailiff,  to  be  executed,  under  which  he  entered  and  seized 
the  plaintiff's  goods.  The  plaintiff  replied,  admitting  the  writ,  warrant  and 
delivery  thereof  to  the  defendant,  but  traversing  the  rest  of  the  plea.  It  was 
held,  that  the  defendant  was  not  bound  to  prove  the  warrant:  Heicitt  v.  Macquire, 
21  L.  J.  Ex.  90. 

"  Bonzi  V.  Steward,  4  M.  &  G.  (43  E.  C.  L.  R.)  295 ;  Needham  v.  Fraser,  1  C. 

B.  (50  E.  C.  L.  R.)  815  ;  Fegg  v.  Stead,  9  C.  &  P.  (38  E.  C.  L.  R.)  636 ;  Guy  v. 
Gregorij,  9  C.  &  P.  (38  E.  C.  L.  R.)  584;   Givynne  v.  Sharpe,  Car.  &  M.  (41  E. 

C.  L.  R.)  532. 

^  Guy  v.  Gregory,  supra;  see  tit.  Wav.  The  question  whether  a  seizure  was 
under  the  writ  or  not  is  left  open :  Carnaby  v.  Welby,  8  A.  &  E.  (35  E.  C.  L.  R.) 
872.  So,  in  Colishaw  v.  Cheslyn,  1  C.  &  J.  48,  where  it  was  averred  that  one 
was  seised  in  fee,  and  being  so  seised  granted,  a  traverse  of  the  grant  admits 
the  seisin  in  fee.  And  where  a  pleading  stated  that  a  corporation  was  seised  in 
fee,  and  being  so  seised  by  indenture  demised  to  H.  for  lives,  and  delivered 
seisin  to  him,  who  thereby  became  and  was  seised,  and  being  so  seised  granted 
a  riglit  of  wiiy  over  the  locus  in  quo,  and  a  grant  of  the  right  of  way  is  traversed. 
By  this  traverse  all  the  previous  steps  of  the  derivative  title  are  admitted. 
Cooke  V.  Blake,  1  Ex.  220.  Where  a  plea  justified  an  imprisonment,  under  an 
order  of  the  judge  of  the  Sheriff's  Court  of  London,  for  non-payment  of  money 
recovered  there,  and  set  forth  various  proceedings  in  the  cause  necessary  to  give 


QUALITY     OF     EVIDENCE.  640 

admissions  of  the  parties  on  the  record,  though  they  be  contrary  to 

the  truth  ;  but  in   other   cases,  as   has  been   seen,*^  the  jury  are  not 

estopped  to  find  tlie  truth,  though  the  parties  are.     But  where  there 

are  several  issues  ioine<l,^  *an  admission  evolved  in  one  does 

...  r*641'' 

not  operate  as  an   admission  in  relation  to  any  other.     Nor    •-         -^ 

are  the  statements  of  a  party  in  a  declaration  or  plea,  though  for  the 

purposes  of  the  issue  he  is  bound  by  those  which  are  material,  and 

the  evidence  must  be  confined  to   them  upon  an  issue,  to  be  treated 

(it  would  seem)  as  confessions  of  the  truth  of  the  facts  stated.^ 

Next,  as  to  the  quality  of  the  evidence  to  be  adduced  by  the 
parties. 

It  is  the  peculiar  province  of  the  jury  to  decide  upon  the  force 
and  effect  of  the  evidence  submitted  to  them  ;  but,  as  has  already 
been   seen,   the   law,  by  many  rules  of  a  negative   nature,    excludes 

jurisdiction,  and  stated  that  the  judge  duly  made  the  order,  which  hist  aver- 
ment was  traversed  :  it  was  held  that  the  proceedings  set  forth  were  not  in- 
cluded in  the  last  averment,  but  were  admitted  :  Buchanan  v.  Kinninc/,  20  L.  -J., 
C.  P.  252,  in  Cam.  Scacc.  So,  in  an  action  on  a  bond,  with  the  plea  that  there 
was  a  usurious  agreement  between  the  parties,  and  that  the  bond  was  given  in 
pursuance  of  it,  a  denial  of  the  latter  allegation  admits  the  former:  Carter  v. 
James,  13  M.  &  W.  137. 

®  Supra ;  and  see  B.  N.  P.  298  ;   GoddarcVs  case,  2  Co.  4. 

^  E.  g.  A  plea  of  set-off  is  not  evidence  of  the  debt  sued  for  and  denied  in 
another  plea.  The  same  I'ule  applies  to  a  particular  set-off,  it  being  virtually 
part  of  the  plea  :  Burkitt  v.  Blansliard,  3  Ex.  89  ;  Harrington  v.  Macmorris,  G 
Taunt.  (1  E.  C.  L.  R.)  228  ;  Willes  380  ;  Stracy  v.  Blake,  1  M.  &  W.  168  ;  GoiiJd 
V.  Oliver,  2  M.  &  G.  (40  E.  C.  L.  R.)  208.  In  an  action  of  replevin,  the  defend- 
ant avowed  upon  a  distress  for  rent  arrear,  to  which  the  plaintiflF  pleaded  :  first, 
that  he  tendered  the  rent;  and  secondly,  that  he  did  not  hold  under  the  defend- 
ant. It  was  held  that  the  plea  of  tender  and  evidence  thereof  were  not  together 
evidence  of  the  holding  as  traversed  by  the  second  plea  ;  Knight  v.  McDonell,  12 
A.  &E.  (40  E.  C.  L.  R.)  438. 

2  Boileau  v.  Rutlin,  2  Ex.  681. 

It  is  clear  from  all  the  cases  just  quoted,  that  the  judge  is  bound  to  tell  the 
jury  what  is  admitted  by  the  pleadings  ;  but  a  question  has  occurred  whether 
what  is  so  admitted  is  evidence  upon  the  issue  joined,  so  as  to  warrant  the  jury 
in  drawing  any  inference  from  it  as  to  that  issue.  This  has  given  rise  to  much 
discussion,  and  it  may  be  that  if  a  party  wishes  the  jury  to  draw  any  inference 
he  must  establish  the  facts  from  which  that  is  to  be  drawn  by  evidence,  accord- 
ing to  which  they  are  sworn  to  find  their  verdict.  See  the  cases,  ante,  p.  592, 
note  {t)  ;  and  Robins  v.  Lord  Maidstone,  4  Q.  B.  (45  E.  C.  L.  R.)  811.  For,  as 
Cresswell,  J.,  observes,  in  Fearn  v.  Filica,  7  M.  &  G.  (49  E.  C.  L.  R.)  573:  "  If 
the  rule  be  not  that  an  admission  on  the  record  is  not  to  be  taken  to  prove  the 
issue,  this  singular  state  of  circumstances  might  arise :  counsel  might  ask  a 
jury,  from  the  mere  state  of  the  record,  to  infer  a  fact  which  was  directly  in 
issue."     Dunstan  v.  Tresider,  ante,  p.  639. 


641  PROOFS. 

from  their  consideration  some  matters,  on  account  of  their  general 
tendency  to  mislead  and  to  create  prejudice,  rather  than  to  promote 
the   cause   of   truth.     One   of    the   most  important   rules   upon  this 

*subiect  is  that  which  requires  that  the  best  attainable  evi- 

r*6421 

L       ''J    dence  shall  be  adduced  to  prove  every  disputed  fact.     This 

rule  has  already  been  adverted  to,  though  but  slightly,  inasmuch  as 
its  effect  is  not  to  exclude  any  of  the  materials  of  evidence  in  the 
abstract,  but  only  by  comparison  of  the  evidence  offered  with  that 
which  might  have  been  produced,  but  which  has  been  suspiciously 
withheld. 

The  ground  of  this  rule*"  is  a  suspicion  of  fraud.  If  it  appear 
from  the  very  nature  of  the  transaction  that  other  and  better  evi- 
dence of  the  fact  is  withheld,  a  presumption  arises  that  the  party 
has  some  secret  and  sinister  motive  for  not  producing  the  best  and 
most  satisfactory  evidence,  and  is  conscious  that  if  the  best  were  to 
be  afforded,  his  object  would  be  frustrated :  subject,  then,  to  the 
observations  which  will  be  made  upon  the  operation  of  this  rule, 
it  follows,  that  of  the  several  gradations  in  the  scale  of  evidence, 
no  evidence  of  an  inferior  class  can  be  substituted  for  that  of  a 
superior  degree.  It  is  a  very  general  rule,  that  the  contents  of  a 
writing  cannot  be  proved  by  a  copy,'  still  less  by  mere  oral  evi- 
dence, if  the  writing  itself  be  in  existence  and  attainable.''  If  a 
deed  be  lost,  a  copy  has  been  held  not  to  be  evidence  if  a  counter- 
part exist.^  And,  except  on  special  grounds,  no  declaration 
L  -I  *or  entry  by  any  person  can  be  given  in  evidence,  where  the 
party  who  made  such  declaration  or  entry  can  be  produced  and  ex- 

•^  B.  N.  P.  293-4 ;  supra,  p.  500. 

'  Supra.,  pp.  499,  500.  To  prove  an  insurance  from  fire,  the  books  of  the 
company  are  not  the  best  evidence.  The  policy  itself  must  be  produced  :  R.  v. 
Doran,  1  Esp.  C.  127  ;  Kenyon,  C.  J.,  1791. 

■^  Siqjra,  p.  530.  See  the  observations  of  Lord  Tenterden,  in  the  case  of  Vin- 
cent v.  Cole,  M.  &  M.  (22  E.  C.  L.  R.)  258  ;  as  to  the  extreme  danger  of  relying 
on  the  recollection  of  witnesses,  however  honest,  as  to  the  contents  of  written 
instruments;  and  see  also  The  Queen's  case,  2  B.  &  B.  (6  E.  C.  L.  R.)  287, 
supra;  Crowley  v.  Page,  7  C.  &  P.  (32  E.  C.  L.  R.)  790;  Strother  v.  Barr,  5 
Bing.  (15  E.  C.  L.  R.)  151  ;  Vol.  II.,  tit.  Assumpsit,  Ejectment,  Title  op 
Landlord. 

'  Supra,  p.  542.  But  this  seems  very  questionable :  see  Doe  v.  Wainioright, 
5  Ad.  &  E.  (31  E.  C.  L.  R.)  523.  The  commissioners  under  an  Enclosure  Act, 
having  made  minutes  of  their  proceedings,  held,  that  parol  evidence  of  the 
divisions  and  allotments  was  inadmissible,  the  minutes  of  the  commissioners 
not  being  produced  or  accounted  for :  Bendi/she  v.  Fearse,  1  B.  &  B.  (5  E.  C.  L. 
R.)  400. 


QUALITY    OF    EVIDENCE.  643 

amined  as  a  witness.™  These  are  well  known  definite  gradations  of 
evidence,  to  which  the  principles  may  be  applied  without  much  diffi- 
culty. Thus,  upon  a  question,  whether  the  Abbey  de  Sentibus  was 
an  inferior  abbey  or  not,  Dugdale's  Monasticon  Anglicanum  was 
rejected,  because  the  original  records  might  be  had  at  the  Augmen- 
tation Office." 

This  rule  relates  not  to  the  measure  and  quantity  of  evidence,  but 
to  its  quality  when  compared  with  some  other  evidence  of  superior 
degree.  It  is  not  necessary,  in  point  of  law,  to  give  the  fullest 
proof  that  every  case  may  admit  of.  A  will  of  lands  may  be 
proved  by  one  witness  only."  If  there  be  several  eye-witnesses 
to  a  particular  fact,  it  may  be  proved  by  the  testimony  of  one 
only. 

*Where  the  defendant,  in  order  to  disprove  the  right  r^nAA-\ 
claimed  by  the  plaintiflF  to  erect  certain  hatches  on  a  river, 
oiFered  in  evidence  ancient  articles  of  agreement  between  persons 
standing  in  the  respective  situations  of  the  plaintiff  and  defendant ; 
;ind  the  defendant's  attorney  produced  the  deed,  and  said  he  received 
it  from  the  son  of  the  owner  of  the  defendant's  land  ;  and  on  the 
objection  being  taken  that  this  was  insufficient,  the  father  was  called, 
whose  testimony  was  objected  to  on  the  score  of  interest ;  it  was 
held  that  the  deed  was  inadmissible,  for  the  testimony  of  the  father 
had  been  objected  to,  and  the  next  best  evidence  had  been  given. ^ 

"  Even  althoufrh  the  parties  to  be  called  would  criminate  themselves  by  the 
proof  required :  Edmondstone  v.  Wehh,  3  Esp.  C.  264 ;  The  Queen!' s  case,  2  B. 
&  B.  (6  E.  C.  L.  R.)  311  ;  or  be  abroad,  ante,  p.  474. 

°  Salk.  281.  Oaths  taken  by  a  preacher  under  the  Toleration  Act  are  matter 
of  record,  and  cannot  be  proved  by  parol  evidence  :  B.  v.  Hube  and  others, 
Peake's  C.  132.  To  prove  that  A.  was  chosen  constable,  the  wardmote  book, 
containing  an  account  of  the  election,  should  be  produced ;  a  list  from  the  town 
clerk's  office  of  the  persons  sworn  in  to  serve  the  office,  in  which  the  name  of 

B.  appears  as  having  been  sworn  as  substitute  for  A.,  is  not  the  best  evidence  '■ 
Underhill  v.  Witts,  3  Esp.  C.  56. 

°  See  tit.  Will  ;  B.  N.  P.  264.  So,  handwriting  may  be  proved  by  another, 
without  calling  the  writer :  see  Hughes''  case,  2  East  P.  C.  1002  ;  ilf'  Guire^s 
case.  Ibid. ;  for  other  illustrations,  see  Leihman  v.  Pooley,  1  Starkie's  C.  (2  E. 

C.  L.  R.)  167;  and  tit.  Agent,  Perjury.  Where  consent  is  to  be  negatived, 
even  in  a  criminal  case,  it  is  not  absolutely  necessary  that  the  party  himself, 
whose  consent  is  required  to  be  negatived,  should  be  called.  As  upon  indict- 
ments for  unlawfully  killing  deer  or  taking  fish :  Allen'' s  case,  1  Mood.  C.  G. 
154,  before  the  judges ;  Hazy's  case,  2  C.  &  P.  (12  E.  C.  L.  R.)  458,  overruling 
R.  V.  Rogers,  2  Camp.  654,  in  this  respect.     See  ante,  p.  594. 

P  Carol  V.  Jeans,  cor.  Ilolroyd,  J.,  Dorch.  Sp.  Ass.  1819  ;  Manning's  Ind.  375 
2d  edit. 


644  PROOFS. 

Nor  does  it  apply  in  any  case,  unless  the  evidence  proposed  be  in 
its  seneral  nature  of  an  inferior  degree  to  that  for  which  it  is  sought 

o  O  o 

to  be  substituted.  It  is  not  sufficient  that  it  may  probably  be  less 
satisfactory  in  the  particular  instance.  Where  a  plaintiff  proved 
notice  to  the  defendant  to  produce  a  letter  written  by  him  to  the 
defendant,  it  was  held  that  the  plaintiff  was  at  liberty  to  prove  the 
contents  by  any  witness  who  knew  them,  and  that  he  was  not  obliged 
to  call  the  clerk  who  wrote  the  letter.^ 

The  rule  assumes,  that  from  the  nature  of  the  transaction  superior 
evidence  may  be  had  ;  and  therefore  it  never  excludes  evidence,  which 
is  the  best  that  can  be  then   produced  by  the  party/  ^     Hence  if  a 

1  Liehman  v.  PooJey,  1  Starkie's  C.  (2  E.  C.  L.  R.)  167. 

"■  Gilb.  Ev.  3,  4 ;  B.  N,  P.  294.  Where,  on  principles  of  public  policy,  a 
document  cannot  be  read  in  evidence,  the  effect  will  be  the  same  as  if  it  was 
not  in  existence  :  Cooke  v.  Maxivell,  2  Starkie's  C.  (3  E.  C.  L.  R.)  483.  There- 
fore, where  such  a  document  contains  an  order  from  a  public  officer,  no  evidence 
can  be  given  of  its  contents,  but  it  may  be  shown  that  what  was  done  was  done 
by  the  order  of  such  officer :  Ibid. 

^  Evidence  of  an  inferior  nature,  which  supposes  evidence  of  a  hi<fher  nature 
in  existence,  cannot  be  received  :  Taunton  Turnpike  v.  Whiting,  10  Mass.  327  ; 
Commonwealth  v.  James,  1  Pick.  375 ;  United  States  v.  Gibert,  2  Sumn.  19 ; 
Murdecai  v.  Beat,  8  Port.  529.  A  seizure  and  sale  on  a  distress  warrant,  the 
proceedings  on  which  are  required  to  be  in  writing,  cannot  be  proved  by  parol : 
Myers  v.  Smith,  27  Md.  71.  When  a  contract  of  sale  appears  to  have  been 
made  by  letters,  they  are  the  only  competent  evidence  of  it:  Steele  v.  Etheridge, 
15  Minn.  501.  A  printed  advertisement  is  not  admissible  where  it  is  shown 
that  it  was  copied  from  a  manuscript,  and  the  manuscript  is  not  accounted  for : 
Sweigartv.  Loiomartin,  14  S.  &  R.  200.  As  between  living  witnesses,  one  is  not 
to  be  excluded  because  another  had  a  better  opportunity  of  knowing  a  fact 
deposed  to :  Governor  v.  Roberts,  2  Hawks  26.  The  contents  of  letters  which 
are  lost  may  be  shown  by  any  one,  without  accounting  for  the  non-production 
of  the  person  to  whom  they  are  written  :  Drish  v.  Davenport,  2  Stew.  266.  In 
a  trial  under  an  indictment  for  uttering  a  forged  bank  note,  an  officer  of  the 
bank  ought  to  be  examined  :  State  v.  Petfg,  Harper  59.  Parol  evidence  is  not 
admissible  if  there  be  written  evidence  to  the  same  point  within  the  power  of 
tlie  party  offering  it:  Cloud  v.  Patterson,  1  Stewart  394;  Mc Williams  v.  Willis, 
1  Wash.  199 ;  Sebree  v.  Dorr,  9  Wheat.  558  ;  Davis  v.  Robertson,  1  Rep.  Const. 
Ct.  71  ;  ])e  Tastct  v.  Croussillat,  2  Wash.  C.  C.  132;  Buell  v.  Cook,  5  Conn. 
206  ;  Rusk  V.  Sowerwine,  3  liar.  &  Johns.  97  ;  Thornton  v.  Moody,  2  Fair.  253. 
Though  a  plaintiff  goes  through  his  proof  without  objection  and  rests  his  cause, 
if  he  has  proved  by  parol  a  piece  of  written  evidence,  which  ought  to  be  pro- 
duced, it  is  not  too  late  for  the  defendant  to  object  that  the  writing  should  be 
produced  :  Southwick  v.  Hayden,  7  Cow.  334.  See  also  Anderson  v.  Suggs,  42 
Ga.  265 ;  Knell  v.  Colebrook,  35  Conn.  188  ;  Camden  R.  R.  Co.  v.  Stewart,  4 
Green  343.     The  fact  of  a  tenancy  by  a  party  holding  under  a  written  lease 


BEST  EVIDENCE  —  EXCEPTIONS.  644 

deed  or  other  written  document  be  lost,  or  be  in  the  hands  of  the 
adversary,  who  refuses  to  produce  it,^  a  copy  of  it  is  admissible.  If 
a  witness  to  a  bond  be  dead,  or  be  beyond  seas,  *out  of  the  r-jfaAtri 
jurisdiction  of  the  court,  it  may  be  read  upon  proof  of  his 
handwriting.'  So  where  the  witnesses  are  dead,  their  depositions  or 
their  declarations  made  when  they  were  in  extremis  frequently  become 
evidence.  Where  a  prisoner's  examination,  taken  in  writing  before 
the  coroner,  could  not,  in  consequence  of  an  irregularity  in  the  latter, 
be  read,  it  was  held  that  the  coroner  might  be  asked  as  to  what  the 
prisoner  said  on  that  occasion." 

Neither  is  the  rule  strictly  adhered  to   where   a   mere   negative  is 

^  See  Written  Instrument,  Proof  of,  ante,  pp.  543,  568. 

^  Ante,  p.  312. 

°  B.  V.  Beed,  M.  &  M.  (22  E.  C.  L.  R.)  403. 

may  be  proved  by  parol :  Bayner  v.  Lee,  20  Mich.  384.  Parol  evidence  is 
admissil)le  to  show  that  a  certain  person  was  confined  in  the  penitentiary, 
although  the  warden  is  required  by  law  to  keep  a  journal  in  which  a  regular 
entry  is  made  of  the  reception  and  discharge  of  prisoners :  Hanson  v.  Comm., 
1  P.  F.  Smith  332.  In  a  suit  by  an  attorney  for  fees,  parol  evidence  is  not 
admissible  to  show  that  he  instituted  certain  suits  for  defendants :  Hughes  v. 
Christy,  26  Tex.  230.  Parol  evidence  is  admissible  to  prove  who  are  the  officers 
of  a  corporation  :  Broicn  v.  La  Crosse  City  Gas  Co.,  21  Wis.  51.  Though  a 
written  instrument  has  no  stamp,  the  original  contract  may  be  proved  by  parol, 
if  not  within  the  Statute  of  Frauds :  McAfferty  v.  Hale,  24  Iowa  355.  Where  a 
written  contract  is  executed  in  duplicate,  it  is  not  error  to  allow  the  contract 
held  by  one  party  to  be  read  in  evidence  before  the  duplicate  in  the  hands  of 
the  other  party  has  been  produced  or  its  absence  accounted  for:  Cleveland  B. 
B.  Co.  v.  Perkins,  17  Mich.  296.  Parol  evidence  is  admissible  to  prove  that  a 
road  is  a  highway,  although  there  is  no  evidence  that  it  was  ever  laid  out  as 
such  :  Woburn  v.  Henshaio,  101  Mass.  193.  In  an  action  for  a  railroad  sub- 
scription, one  of  the  conditions  of  which  was  that  the  company  should  contract 
for  grading,  &c.,  the  fact  may  be  shown  by  parol  evidence:  St.  Louis  B.  B.  Co. 
V.  Eakins,  30  Iowa  279.  The  fact  of  the  issuing  of  an  execution  may  be  shown 
by  parol  evidence :  Supples  v.  Lewis,  37  Conn.  568.  It  is  not  necessary  to  pro- 
duce the  military  records.  They  are  kept  for  the  uses  of  the  army,  and  not  as 
evidence  between  individuals:  Wilson  v.  McClure,  50  111.  366.  The  fact  of 
enlistment  and  mustering  into  the  military  service  of  the  United  States  may  be 
proved  by  parol  evidence :  Wayland  v.  Ware,  104  Mass.  46.  When  the  matter 
is  wholly  collateral,  and  between  other  parties,  in  which  defendant  had  no 
interest,  the  plaintiff  may  give  parol  evidence  of  contents  of  a  written  contract: 
Oates  V.  Kendall,  67  N.  C.  241.  The  questions  how  many  terms  of  court  were 
held  in  a  certain  year,  what  judge  presided  and  whether  juries  were  in  attend- 
ance, though  these  are  facts  which  might  appear  from  the  records,  are  in  the 
nature  of  matters  in  fact,  and  may  be  proved  by  parol  evidence :  Massey  v. 
Westcott,  40  111.  160. 


645  PROOFS. 

to  be  proved,  especially  where  it  results  from  inspecting  documents 
of  a  voluminous  nature."  And  though  a  witness  cannot  give  evi- 
dence of  accounts  not  produced,  he  may,  it  seems,  be  examined  as 
to  the  general  state  of  such  accounts,  or  he  may  give  evidence  of 
the  general  course  of  trade,  as  that  the  practice  has  been  to  accept 
bills  in  a  particular  form,  according  to  one  invariable  course  of  deal- 
ing.^ In  Rowe  v.  Brenton^^  a  witness  was  allowed  to  state  the  result 
of  his  examination  of  a  number  of  old  records,  and  to  prove  their 
correspondence  with  one  which  had  been  read.  So,  a  witness  may 
be  examined  as  to  the  general  result  of  inquiries  from  accounts 
rendered  by  a  bankrupt,  of  his  affairs  as  to  his  solvency  at  a  particular 
time.''  And,  in  general,  where  evidence  is  given  as  to  introductory 
r*fi4fi1  ^^  collateral  matters,  *whlch  did  not  depend  at  all  upon 
the  particular  form  or  contents  of  the  instrument,  such  evi- 
dence, though  perhaps  not  strictly  warranted,  is,  for  convenience 
sake,  usually  admitted  in  practice  without  objection. 

Again,  as  the  rule  was  intended  to  guard  against  fraud,  its  opera- 
tion ceases  where  the  presumption  of  fraud  does  not  arise  ;  conse- 
quently, it  does  not  apply  where  the  law  itself  raises  a  presumption 
under  particular  circumstances.  And,  therefore,  in  general,  in  order 
to  prove  that  a  particular  person  Avas  a  magistrate  or  constable,  it  is 
sufficient  to  prove  that  he  acted  as  such  ;  for  then,  in  the  absence  of 
evidence  to  the  contrary,  it  is  to  be  presumed  that  he  was  duly  and 
legally  appointed.^  The  rule,  as  Avell  as  the  principle,  seems  to 
extend  to  all  public  officers."  It  has  been  held  to  extend  to  persons 
acting  as  Lords  of  the  Treasury  f   to   one  acting  as   a  surrogate  in 

^  AVhere,  in  order  to  show  the  insolvent  state  of  the  party  before  bankruptcy, 
the  assignees  (phiintiifs)  offered  the  ledger  of  the  bankers  of  the  bankrupt  to 
prove  that  he  had  no  funds  in  their  hands ;  it  was  held,  that  it  was  properly 
received  to  prove  the  negative,  without  calling  the  different  clerks  who  made 
the  entries,  although  it  might  not  be  admissible  to  prove  the  affirmative :  Furness 
V.  Cope,  5  Bing.  (15  E.  C.  L.  R.)  114. 

y  Roberts  v.  Doxon,  Peake's  C.  83  :  Spencer  v.  Billing,  3  Camp.  310.  But  if 
the  mode  of  dealing  has  varied,  the  bills  must  be  produced. 

^3M.  &R.  212. 

»  Assignees  of  Mayer  v.  Sefton,  2  Stark.  C.  (3  E.  C.  L.  R.)  274.  Lord  Kcnyon 
had  received  similar  evidence,  see  Topham  v.  M'Gregor,  1  C.  &  K,  (47  E.  C.  L. 
R.)  320,  ante,  p.  176. 

''  See,  per  Bullcr,  J.,  Berryman  v.  Wise,  4  T.  R.  3G6  ;  Gordon's  case,  1  Leach 
C.  C.  'A'i  ;per  Parke,  B.,  M'Gahey  v.  Alston,  2  M.  &  W.  208.  So,  that  a  justice 
was  of  the  quorum  from  his  having  acted  as  such:  R.  v.  Vickcry,  12  Q.  B.  (64 
E.  C.  L.  R.)  484. 

«  M-Gahey  v.  Alston,  2  M.  &  W.  209  ;  Canad  v.  Cartis,  2  Bing.  N.  C.  (29  E. 
C.  L.  R.)  228. 

*  R.  V.  Jones,  2  Camp.  I'il. 


BEST  EVIDENCE  —  EXCEPTIONS.  646 

the  Ecclesiastical  Court  ;Mo  a  public  commissioner  for  taking  affi- 
davits •/  to  a  sheriff,  under-sheriff,  or  replevin  clerk  ;^  to  a  Master  in 
Chancery,  acting  under  a  special  appointment  from  the  Lord  Chan- 
cellor to  issue  fiats  in  bankruptcy ;''  to  constables  and  watchmen,  act- 
ing under  local  commissions  appointed  by  Act  of  Parliament ;'  to 
trustees  under  a  turnpike  act  ;^  to  commissioners  under  a  local  act  to 
raise  a  church  rate  ;'  to  churchwardens  and  *oversecrs  ;™  to  |-*p4Y-| 
an  army  surgeon  ;"  so,  where  the  plaintiff  proved  his  acting 
as  -vestry  clerk  ;°  so,  in  the  case  of  a  revenue  officer.''  The  rule  ap- 
plies, although  the  officer  is  himself  suing  or  defending,  and  that  too 
in  respect  of  his  being  such  officer/'  The  rule  does  not  extend  to 
persons  acting  under  private  authority,  as  to  a  tithe  collector/  Nor 
to  assignees  of  a  bankrupt.^ 

^  R.  V.  Verelst,  3  Camp.  432  ;  R.  v.  Cresswell,  London  Sittings  after  M.  1816  ; 

1  Phill.  on  Ev.,  9th  edit.  433. 

f  R.  V.  Howard,  1  M.  &  Rob.  187  ;  R.  v.  Newton,  1  C.  &  K.  (47  E.  C.  L.  R.) 
480 ;  Bunhury  v.  Mathews,  Ibid.  380. 

e  Doe  V.  Brawn,  5  B.  &  Aid.  (7  E.  C.  L.  R.)  243  ;  Plumer  v.  Brisco,  11  Q.  B. 
(63  E.  C.  L.  R.)  46. 

»  Marshall  v.  Lamb,  5  Q.  B.  (48  E.  C.  L.  R.)  115. 

*  Butler  V.  Ford,  1  C.  &  M.  662. 

^  Pritchard  v.  Walker,  3  C.  &  P.  (14  E.  C.  L.  R.)  212. 

1  R.  V.  Murphy,  8  C.  &  P.  (34  E.  C.  L.  R.)  310. 

"^  Does  V.  Barnes,  8  Q.  &  B.  (55  E.  C.  L.  R.)  1037. 

°  Milhanke  v.  Grant,  3  Q.  B.  (43  E.  C.  L.  R.)  690. 

°  M Galley  v.  Jlston,  2  M.  &  W.  211. 

p  See  26  Geo.  III.,  c.  77,  s.  13,  and  Ibid.  c.  82,  s.  6 ;  7  &  8  Geo.  IV.,  c.  53,  s. 
17 ;  8  &  9  Vict.  c.  87,  s.  131 ;  8  &  9  Vict.  c.  85,  s.  7,  and  c.  93,  s.  75  ;  see  tit. 
Presumptions,  Officer,  post. 

•J  M'' Galley  y.  Alston,  supra,  where  he  was  nominal  plaintiff:  Cannellv.  Curtis, 

2  Ring.  N.  C.  (29  E.  C.  L.  R.)  228  ;  where  he  sued  for  a  libel  on  him  in  his 
character  of  overseer  :  Doe  v.  Barnes,  supra,  where  churchwardens  and  over- 
seers sought  to  recover  a  parish  house  :  Butler  v.  Ford,  supra,  where  constables 
were  sued  for  an  act  done  as  such  ;  and  see  Gordon'' s  case,  supra ;  R.  v.  Borrett, 
6  C.  &  P.  (25  E.  C.  L.  R.)  124 ;  and  R.  v.  Rees,  6  C.  &  P.  (25  E.  C.  L.  R.)  606; 
where  the  prisoner  was  employed  in  the  post-office,  and  was  indicted  for 
embezzling  a  letter  while  so  employed.  So,  in  R.  v.  Tuwnsend,  Car.  &  M.  (41 
E.  C.  L.  R.)  178.  It  seems  questionable,  where  there  is  an  issue  upon  the  fact 
of  the  appointment  to  an  office,  whether  that  must  not  be  regularly  proved. 
Thus,  where  the  appointment  of  town  clerk  by  a  corporation  was  in  issue,  an 
appointment  under  seal  was  required:  R.  v.  Stamford,  5  Q.  B.  (51  E.  C.  L.  R.) 
433.  So,  of  the  office  of  coalmeter  :  Smith  v.  Cartwright,  20  L.  J.,  Ex.  401,  in 
Cam.  Scacc. ;  and  see  Moises  v.  Thornton,  8  T.  R.  303  ;  Collins  v.  Carnegie,  1 
Ad.  &  E.  (28  E.  C.  L.  R.)  695. 

'  Short  v.  Lee,  2  J.  &  W.  468. 

«  Passmore  v.  Bousjield,  1  Stark.  C.  (2  E.  C.  L.  R.)  296. 


r 

647  PROOFS. 

So,  where  a  document  is  of  a  public  nature,  a  copy  of  it  is  evi- 
dence; for  the  production  of  the  original  is  dispensed  with  on 
account  of  the  inconvenience  which  would  result  from  tlie  frequent 
removal  of  public  documents,  and  consequently,  the  absence  of  the 
original  affords  no  presumption  of  fraud;  and  the  probability  of 
fraud  is  much  diminished  by  the  consideration  that  it  would  be  liable 
to  easy  detection  by  reference  to  so  accessible  an  original.*  For 
r*648"l  *^'^®  reasons,  inscriptions  on  tombstones,  walls  and  fixed 
tables,  are  usually  proved  by  oral  evidence." 

The  rule  does  not  apply  where  the  adversary  has  admitted  the  fact 
which  is  to  be  proved;  for  he  is  in  general  barred  by  his  own  admis- 
sion or  representation,  and  cannot  complain  that  his  own  statement 
is  believed.^ 

It  is  likewise  a  general  and  most  inflexible  rule,  that  wherever 
written  instruments  are  appointed,  either  by  the  requirement  of  law 
or  by  the  compact  of  parties,  to  be  the  repositories  and  memorials  of 
truth,  any  other  evidence  is  excluded  from  being  used,  either  as  a 
substitute  for  such  instruments  or  to  contradict  or  alter  them.  This 
is  a  matter  both  of  principle  and  policy:  of  'principle,  because  such 
instruments  are  in  their  own  nature  and  origin  entitled  to  a  much 
higher  degree  of  credit  than  parol  evidence ;  of  policy,  because  it 
would  be  attended  with  great  mischief,  if  those  instruments  upon 
which  men's  rights  depended  were  liable  to  be  impeached  by  loose 
collateral  evidence.-^ 

'  Supra,  tit.  Public  Documents;  infra,  Vol.  II.,  tit.  Character. 

°  Doe  V.  Cole,  6  C.  &  P.  (25  E.  C.  L.  R.)  360 ;  R.  v.  Furseij,  6  C.  &  P.  (25  E. 
C.  L.  R.)  84. 

*  Slatterlie  v.  Pooley,  6  M,  &  W.  G64  ;  and  ante,  pp.  505,  506  ;  see  also  Vol. 
II.,  tit.  Admission. 

^  Parol  evidence  is  inadmissible  to  contradict,  vary  or  alter  a  written  con- 
tract :  Shankland  v.  Washington,  5  Pet.  390  ;  Perrine  v.  Cheeseman,  6  Halst. 
174;  Spencer  V.  Tilden,  5  Cow.  144;  United  States  v.  Thompson,  1  Gall.  388; 
Bowj/er  v.  Martin,  6  Rand.  525  ;  Jones  v.  Warner,  11  Conn.  40 ;  Creery  v.  Holly, 
14  Wend.  26;  Singleton  v.  Fore,  7  Miss.  515;  State  v.  Stites,  1  Green  172; 
Mead  v.  Steger,  5  Port.  498  ;  Hull  v.  Adams,  1  Hill  601 ;  Featherstone  v.  Wilson, 
4  Pike  154;  Eice  v.  Woods,  21  Pick.  30 ;  Cole  v.  Handley,  8  S.  &  M.  473 ;  Beck- 
ley  v.  Manson,  22  Conn.  299;  McCloslcey  v.  McCormiclc,  37  111.  66;  Snyder  v. 
Griswold,  Il)id.  216  ;  Warren  v.  Crew,  22  Iowa  315  ;  Aldric.lc's  adm.  v.  Hapgood, 
39  Vt.  617;  Wintermate  v.  Light,  46  Rarb.  278  ;  Collins  v.  Baumgardner,  2  P. 
F.  Smith  461  ;  Freeman  v.  Bass,  34  Ga.  355;  Shreveport  v.  Le  Rosen,  18  La. 
Ann.  577  ;  Wren  v.  Hoffman,  41  Miss.  616  ;  Buckley  v.  Bentley,  48  Barb.  283; 
Sahercool  v.  Fareivell,  17  Miss.  308  ;  Martin  v.  Thrasher,  40  Vt.  460  ;  Herndon 
V.  Henderson,  41  Miss.  584  ;  Doyle  v.  Dixon,  12  Allen  57 ^j ;  Babbitt  v.  Young,  51 


PAROL     EVIDENCE    NOT    ADMISSIBLE,     ETC.  G48 

The  rule  may  be  thus  generally  stated,  viz.,  that  oral  evidence 
shall  in  no  case  be  received  as  equivalent  to,  or  as  a  substitute  for,  a 
written  instrument,  where  the  latter  is  required  by  law,^  or  to  give 
effect  to  a  written  instrument,  which  is  defective  in  any  particular 
which  by  law  is  essential  to  its  validity  ;^  or  to  contradict,  alter  or 
vary'^  a  written  instrument,  cither  appointed  by  law  or  by  the  com- 

y  Infra,  p.  649.  ^  Infra,  p.  560,  et  seq. 

*  Infra,  p.  65.5,  et  seq. 

Barb.  466  ;  Huffman  v.  Hummer,  2  Green  269  ;  Whyle  v.  Arthur,  Ibid.  521  ; 
Whitman  v.  Revels,  39  Ala.  121  ;  Moody  v.  McCown,  Ibid.  586  ;  Boon  v.  Belfast, 
40  Ala.  184;  Phillips  v.  Costley,  Ibid.  486;  Bogan  v.  Calhoun,  19  La.  Ann. 
472 ;  Mayn  v.  Biggs,  3  Head  36  ;  Cincinnati  R.  R.  Co.  v.  Pearce,  28  Ind.  502  ; 
Smith  V.  Price,  3*9  111.  28  ;  Loivry  v.  Harris,  12  Minn.  255 ;  Feusier  v.  SmitJi,  3 
Nev.  120;  Marshall  v.  Grid  ley,  46  111.  247;  Stange  v.  Wilson,  17  Mich.  342; 
McMicken  v.  Comm.,  8  P.  F.  Smith  213;  Annapolis  v.  Harwood,  32  Md.  471  ; 
.SeZ^  V.  Friedland,  22  La.  Ann.  381  ;  Cook  v.  Shearman,  103  Mass.  21  ;  Perkins 
V.  Young.  82  Mass.  389 :  Coc/ie  v.  Bailey,  42  Miss.  81  ;  Kirk  v.  Hartman,  13  P. 
F.  Smith  97;  Robinson  v.  McNeill,  51  111.  225;  Wimple  v.  Knopf,  15  Minn. 
440  ;  McGuire  v.  Stevens,  42  Miss.  724  ;  Sawyer  v.  Forces,  44  Ga.  662  ;  -Burs  v. 
5ifrs,  22  Mich.  42 ;  Procifor  v.  G^/Zso?i,  49  N.  II.  62 ;  Kerr  v.  Kaykendall,  44 
Miss.  137.  A  written  instrument  may  be  contradicted  by  the  party  making  it, 
when  oifered  in  evidence  in  a  suit  to  which  a  stranger  to  the  instrument  is  a 
party:  Venable  v.  Thompson,  11  Ala.  147;  Hughes  v.  Sandal,  25  Tex.  162. 
Parol  evidence  is  admissible  to  show  that  a  conveyance  absolute  on  its  face  was 
in  fact  a  mortgage  :  Gilchrist  v.  Cunningham,  8  Wend.  641  ;  Hayworth  v. 
Worthington,  5  Blackf.  361  ;  Swart  v.  Service,  21  Wend.  36  ;  Brainerd  v.  Brai- 
nerd,  15  Conn.  575;  Bishop  v.  Bishop>,  14  Ala.  475;  Babcock  v.  Wyman,  19 
How.  (U.  S.)  289;  Royarv.  Walker,  1  Wis.  527;  Hazard  v.  Loring,  10  Cush. 
267  ;  Collins  v.  Tillon,  26  Conn.  368  ;  Couch  v.  Sutton,  1  Grant  114;  Pattison  v. 
Z?ijrjie,  Ibid.  301  ;  Hopkins  v.  ITa^s,  27  Ga.  490  ;  Home  v.  Puchett,  22  Tex.  201 ; 
Pierce  v.  Robinson,  13  Cal.  116;  /njzes  v.  Jones,  1  Head  105;  Emerson  v. 
Atwater,  7  Mich.  12;  Corbity.  Smith,  7  Clarke  60;  Howard  v.  Oc?e?Z,  1  Allen 
85;  PeopZe  v.  ^riom,  14  Cal.  428  ;  Tillson  v.  Moulton,  23  111.  648  ;  PZaiSo  v.  Roe, 
14  Wis.  453  ;  Roberts  v.  M'Mahan,  4  Green  34 ;  Cunningham  v.  Hawkins,  27 
Cal.  603  ;  Preschbaker  v.  Feaman,  32  111.  475  ;  Condit  v.  Tichenor,  4  Green  43  ; 
Crane  v.  Buchanan,  29  Ind.  570;  iTey  v.  McCleary,  25  Iowa  191;  Phoenix  v. 
Gardner,  13  Minn.  430;  Bingham  v.  Thompson,  4  Nev.  224;  <?rot'e  v.  Rentch, 
26  Md.  367  ;  Jackson  v.  Lodge,  36  Cal.  28  ;  (?reert  v.  PaZZ,  4  Bush  586  ;  Carlyon 
V.  Lannan,  4  Nev.  156;  Harjier  v.  Poss,  10  Allen  332;  Newton  v.  Pay,  Ibid. 
505  ;  Bragg  v.  Massie^s  Adm.,  38  Ala.  89;  Mann's  Ex.  v.  Falcon,  25  Tex.  271 ; 
George  v.  Norris,  23  Ark.  121 ;  Reigard  v.  McNeil,  38  111.  400  ;  <?ay  v.  Hamil- 
ton, 33  Cal.  686  ;  Anthony  v.  Atkinson,  2  Sweeny  228.  Contra  at  law  :  SaZc  v. 
Jewell,  7  Greenl.  435  ;  5b^eZ  v.  Lindell,  10  Mo.  483  ;  Montag  v.  PocAr,  Ibid.  506  ; 
CooAr  V.  Eaton,  16  Barb.  439.  A  resulting  trust  may  be  shown  by  parol :  JacA;- 
so/i-  V.  ifiV/s,  13  Johns.  463  ;  >S'co%  v.  Blanchard,  3  N.  H.  170 ;  Boyd  v.  McLean, 
1  Johns.  Ch.  582;  Andrews  v.  Jones,  10  Ala.  460 ;  Morrall  v.  Waterson,  7  Ivans. 
199  ;  Aln^  v.  Ruckman,  21  N.  J.,  Eq.  599. 


648  PROOFS. 

pact  of  private  parties,  to  be  the  appropriate  memorial  of  tlie  par- 
ticular facts  which  it  recites ;  for  by  doing  so.  oral  testimony  would 
be  admitted  in  usurpation  of  a  species  of  evidence  decidedly  superior 
in  deo;ree. 

But  parol  evidence  is  admissible  to  defeat  a  written  instrument, 
on  the  ground  of  fraud,  mistake,   &c.,  or  to  apply  it  to  its  proper 

subject-matter,"  or  to  explain  the  *meaning  of  foreign,  local 
r*6491  .  . 

•-  ''  ^  ov  technical  or  family  terms,**  or  to  rehut  presumption  aris- 
ing intrinsically.  In  these  cases  the  parol  evidence  does  not  usurp 
the  place  or  arrogate  the  authority  of  written  evidence,  but  either 
shows  that  the  instrument  ought  not  to  be  allowed  to  operate  at  all, 
or  is  essential  in  order  to  give  to  the  instrument  its  logal  effect. 

The  extent  to  which  this  principle  operates,  and  the  rules  dedu- 
cible  from  it,  will  be  exhibited  in  the  clearest  point  of  view  by  refer- 
ence to  the  different  purposes  for  which  parol  testimony  can  be  offered 
in  relation  to  written  instruments.  Parol  evidence,  in  general,  may 
be  offered  for  three  purposes  in  relation  to  written  evidence :  First, 
in  OPPOSITION  to  written  evidence,  where  it  is  offered  with  a  view  to 
supersede  the  use  of  written  evidence,  and  to  supply  its  place,  or  to 
contradict  it,  or  to  vary  its  effect,  or  Avholly  to  suhvei't  such  evidence, 
by  showing  that  it  has  no  legal  existence,  or  no  legal  operation  in  the 
particular  case  ;*  or  secondly,  it  is  offered  in  aid  of  written  evidence, 
in  order  either  to  establish  a  particular  document,  or  to  apply  it  to 
its  proper  subject-matter,  or  to  explain  it,  or  to  rebut  some  presump- 
tion which  affects  it,  or  as  secondary  evidence,  where  the  original  is 
unattainable  ;^  or  thirdly,  it  is  used  as  original  and  independent 
evidence  to  prove  a  particular  fact,  without  regard  to  written  evi- 
dence of  the  fact,  not  being  excluded  by  any  rule  of  law.^ 

I.  In  opposition  to  written  evidence. — In  the  first  place,  parol  evi- 
dence is  never  admissible  to  supersede  the  use  of  written  evidence, 
where  written  proof  is  required  by  law. 

Where  the  law,  for  reasons  of  policy,  requires  written  evidence, 
to  admit  oral  testimony  in  its  place  would  be  to  subvert  the  rule 
itself.  The  same  observation  applies  where  the  law  prescribes  a 
certain  form  of  written  evidence ;  *to  allow  a  defect  in  the 
L  -J  instrument  to  be  supplied  by  oral  evidence,  would  be  pro 
tanto,  to  dispense  with  the  law.  Hence,  in  general,  where  the  law 
requires  a  formal  written  document,*"  if  the  document  offered  in  evi- 

"  Infra,  p.  671,  et  seq.  "  Infra,  p.  679. 

^  Infra,  p.  701,  ei  seq.  "  Infra,  p.  671. 

'  Supra,  pp.  543,  568.  b  Jnfra,  p.  716,  et  seq. 

^  See  tit.  Statute  of  Vravds,  post,  Vol.  II. 


PAROL     EVIDENCE     TO     SUPERSEDE,     ETC.  650 

dence  bo  defective,  so  that  it  cannot  operate  wirliout  collateral  aid, 
tke  defect  cannot  be  supplied  by  oral  testimony.  Thus,  if  in  a  will 
the  name  of  the  intended  devisee  or  legatee  be  omitted,  or  a  blank  be 
left  for  the  description  of  the  estate,  or  amount  of  the  legacy,  these 
omissions  cannot  be  supplied  by  oral  testimony  as  to  the  real  inten- 
tion of  the  testator.'  And,  although  different  writings  may,  by  in- 
ternal inference,  be  connected  together  so  as  to  constitute  one  entire 
instrument  within  the  Statute  of  Frauds,  yet  they  cannot  be  con- 
nected by  mere  oral  testimony,''  neither  can  any  defect  in  the  Avriting 
be  supplied  by  oral  evidence.^ 
*In  cases  where  a  written  document  is  not  absolutely  essen- 

r  o  ii  I 

tial,  in  point  of  law,  to  give  a  legal  operation  to  that  which  •-  -• 
is  to  be  proved,  as  it  is  in  cases  under  the  Statutes  of  Frauds  and  of 
Wills,  yet  if  there  be  a  written  memorial  constituted,  parol  evidence 
cannot,  in  general,  be  substituted."     The  examination  of  a  prisoner 

^  Baylis  v.  Attorney-General,  B.  &  P.  298:  2  Atk.  240,.  s.  c. ;  Woollam  v. 
Ilearn,  1  Ves.  211.     Where  the  testatrix  made  a  disposition  in  favor  of  Lady 

,  and  the  will  contained  other  provisions  in  favor  of  Lady  Hort,  and  she  was 

appointed  a  trustee  in  the  will  by  the  name  of  Dame  Hort,  Lord  Thurlow  held 
that  the  blank  could  not  be  supplied  by  parol  evidence :  Hunt  v.  Hort,  3  Bro. 
C.  C.  311.     In  Abbott  v.  Massie,  3  Ves.  148,  where  a  legacy  was  given  to  Mrs. 

G ,  Lord  Loughborough  referred  it  to  the  master  to  ascertain  who  Mrs.  G. 

was,  who  was  thei-e  described  by  initial  letter  only.  But  see  Sir  D.  Evans' 
observations  upon  this  case,  in  his  edition  of  Pothier,  vol.  ii.  p.  204.  Where 
a  blank  was  left  for  the  Christian  name,  parol  evidence  was  admitted  to  show 
who  was  intended :  Price  v.  Page,  4  Ves.  680 ;  but  see  Doe  v.  HiscocJcs,  post^ 
p.  681. 

^  Boydell  v.  Drummond,  11  East  142;  Vol.  IL,  tit.  Statute  of  Frauds. 

'  Ibid.  So  an  agreement,  referring  to  such  parts  of  another  instrument  as  had 
been  read  by  one  party  to  another,  is  not  sufficient  within  the  statute,  because  it 
is  imperfect  without  parol  evidence  ;  but  an  instrument  which  is  conformable  to 
the  statute  may  by  reference  include  the  contents  of  another  vrhich  is  not  so  : 
Brodie  v.  St.  Paul,  1  Ves.  jun.  326;  but  see  Clayton  v.  Lord  Nugent,  13  M.  & 
W.  200.  Although  parol  evidence  be  not  admissible  to  aid  an  imperfect  instru- 
ment :  Halliley  v.  Nicholson,  1  Price  404 ;  yet  where  a  question  arises,  as  to 
which  an  instrument  is  admissible  but  not  decisive  evidence,  such  parol  evidence 
is  admissible  for  the  purpose  of  proving  an  independent  fact  vrhich  is  explanatory 
of  it:  B.  V.  Laindon,  8  T.  R.  397  ;  R.  v.  Billinghay,  5  Ad.  &  E.  (31  E.  C.  L.  R.) 
676;  R.  y.  Stoke-upon-Trent,  5  Q.  B,  (48  E.  C.  L.  R.)  308  ;  as,  that  there  was 
another  consideration  for  the  contract  than  the  one  stated  in  it :  R.  v.  Nortliwing- 
Jield,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  912  ;  or  that  the  money  paid  on  apprenticeship 
was  parish  money,  and  consequently  that  no  stamp  was  required  :  R.  v.  Llan- 
gunnor,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  616;  R.  v.  Cheadle,  3  B.  &  Ad.  (23  E.  C. 
L.  R.)  833. 

™  Supra,  tit.  BesT  Evidence.  The  appellants  having  proved  that  the  pauper 
occupied  a  tenement  of  £10  per  annum,  and  paid  rent  and  taxes  for  it,  the  re- 


651  PROOFS. 

before  a  magistrate  upon  a  charge  of  felony  cannot  be  proved  by 
parol,  unless  it  has  been  expressly  shown  that  the  examination  was 
not  taken,  as  the  statute  requires,  in  writing." 

The  same  principle  applies  where  private  parties  have  by  mutual 
compact  constituted  a  written  document  the  witness  of  their  admis- 
sions and  intentions.^ 

To  admit  oral  evidence  as  a  substitute  for  instruments,  to  which, 
by  reason  of  their  superior  authority  and  permanent  qualities,  an 
exclusive  authority  is  given  by  the  parties,  would  be  to  substitute 
the  inferior  for  the  superior  degree  of  evidence;  conjecture  for  fact, 
and  presumption  for  the  highest  degree  of  legal  authority  ;  loose 
recollection,  and  uncertainty  of  memory,  for  the  most  sure  and  faith- 
ful memorials  which  human  ingenuity  can  devise,  or  the  law  adopt — 
to  introduce  a  dangerous  laxity  and  uncertainty  as  to  all  titles  to 
property,  which,  instead  of  depending  on  certain  fixed  and 
"■^  unalterable  memorials,  would  thus  *be  made  to  depend  upon 
the  frail  memories  of  witnesses,  and  be  perpetually  liable  to  be  im- 
peached by  fraudulent  and  corrupt  practices." 

As  oral  evidence  is  inadmissible  for  the  purpose  of  supplying  an 

spondents  attempted  to  prove  by  parol  that  the  letting  was  to  the  pauper  and 
two  others ;  on  cross-examination  it  appeared  that  the  letting  was  by  a 
written  instrument ;  held,  that  it  was  necessary  to  produce  it :  E.  v.  Baw- 
den,  8  B.  &.  C.  (15  E.  C.  L.  R.)  708 ;  Fenii  v.  Grit^fh,  6  Bing.  (19  E.  C.  L.  R.) 
533. 

'^  Vol.  II.,  tit.  Admission  -.  see  11  &  12  Vict.  c.  42,  s.  18. 

»  Hai/nes  v.  Hare,  1  H.  B.  659 ;  Buckler  v.  MiUercl,  2  Vent.  107  ;  Clifton  v. 
Walmeshij,  5  T.  R.  564  ;  Tinney  v.  Tinney,  3  Atk.  8  ;  1  Wils.  34,  s.  c. ;  Mease  v. 
Mease,  Cowp.  47.  It  would  be  inconvenient,  observes  Lord  Coke  (see  Countess 
of  Butland's  case,  5  Rep.  26),  that  matters  in  writing,  made  by  advice  and  on 
consideration,  and  which  finally  imports  the  certain  truth  of  the  agreement  of 
the  parties,  should  be  controlled  by  an  averment  of  parties,  to  be  proved  by  the 
uncertain  testimony  of  slippery  memory  ;  and  it  would  be  dangerous  to  pur- 
chasers and  all  others  in  such  cases,  if  such  rude  averments  against  matter  in 
writing  should  be  admitted. 

'  When  A.  verbally  accepts  the  written  proposals  of  J?.,  the  contract  is  not  in 
writing,  and  parol  evidence  is  admissible  as  to  its  terms  :  Pacific  Works  v.  Neic- 
hall,  34  Conn.  67  ;  Cobb  v.  Wallace,  5  Cald.  539.  There  is  no  presumption  of 
law  that  a  drop-letter  was  deposited  in  the  post-office  on  the  day  of  the  date  of 
its  post-mark  :  Shelbunie  Falls  Bank  v.  Townslcy,  102  Mass.  177.  As  to  proof 
of  sending  letters  by  mail,  see  Phillips  v.  Scott,  43  Mo.  86.  AVhether  contracts 
by  telegram  are  to  be  considered  as  written  contracts,  see  Beach  v.  Rarifan  R. 
R.  Co.,  37  N.  Y.  457.  The  fact  of  a  telegram  transmitted  does  not  prove  the 
presence  of  the  sender  at  the  place  at  the  time:  JIawley  v.  Whij)ple,  48  N.  II. 
487. 


PAROL  EVIDENCE  TO  SUPERSEDE,  ETC.       652 

omission  in  an  instrument  where  written  evidence  is  required  by 
law  :  so  it  is  inadmissible  to  give  any  eflFect  to  a  written  instrument 
which  is  void  in  law  for  inconsistency,  repugnancy,  or  ambiguity  in 
its  terms ;  for  if  a  meaning  could  be  assigned,  by  the  aid  of  extrinsic 
evidence,  to  tliat  wliich  was  apparently  destitute  of  meaning,  or  if 
the  same  instrument  could  be  made  to  operate  in  different  ways, 
according  to  the  weight  of  oral  evidence,  it  is  plain  that  the  effect 
would  depend,  not  upon  the  instrument,  but  upon  the  force  of  the 
oral  evidence,  and  thus  the  latter  would  virtually  be  substituted  for 
the  former. 

An  important  distinction  has  already  been  adverted  to  between 
ambiguities  which  are  apparent  or  patent  on  the  face  of  an  instru- 
ment, and  those  which  arise  in  the  application  of  an  instrument  of 
clear  and  definite  meaning  to  a  doubtful  subject-matter.  An  ambiguity, 
apparent  on  reading  an  instrument,  is  termed  amhiguitas  patens; 
that  which  arises  merely  upon  its  application,  amhiguitas  latens.  The 
general  rule  of  law  is,  that  the  latter  species  of  ambiguity  may  be 
removed  by  means  of  parol  evidence,  the  maxim  being,  "  Amhiguitas 
verhorum  latens  verificatione  suppletur  :  nam  quod  ex  facto  oritur 
amhiguum  verificatione  facti  tollitur.''^  On  the  other  hand,  it  is  a 
settled  rule  that  *such  evidence  is  inadmissible  to  explain 
an  ambiguity  apparent  on  the  face  of  the  instrument.'^ '  L       '  J 

By  patent  ambiguity  must  be  understood  an  ambiguity  inherent 
in  the  words,  and  incapable  of  being  dispelled  either  by  any  legal 
rules  of  construction  applied  to  the  instrument  itself,  or  by  evidence 
showing  that  terms  in  themselves  unmeaning  or  unintelligible,  are 
incapable  of  receiving  a  known  conventional  meaning.  The  great 
principle  on  which  the  rule  is  founded  is,  that  the  intention  of  parties 
should  be  construed,  not  by  vague  evidence  of  their  intentions,  inde- 
p)endently  of  the  expressions  which  they  have  thought  fit  to  use,  but 
by  the  expressions  themselves.  Now  those  expressions  which  are  in- 
capable of  any  legal  construction  and  interpretation""  by  the  rules  of 
art,  are  either  so   because  they  are  in   themselves  unintelligible,  or 

P  See  Lord  Bacon's  Elements  of  the  Common  Law,  Regula,  23. 
1  Amhiguitas  patens  is  never  holden  by  averments :  Ibid. 

'  It  is  a  general  rule  that  a  patent  ambiguity  is  always,  if  possible,  to  be  re- 
moved by  construction  and  not  by  averment:  Colpoys  v.  Colpoys,  1  Jac.  451. 

^  Except  in  matters  of  science  and  skill,  and  some  other  special  cases  resting 
on  peculiar  circumstances,  a  witness  cannot  be  allowed  to  testify  to  the  meaning 
of  a  word  or  term  used  in  a  contract:  Mobile  Marine  Dock  and  Ins.  Co.  \. 
McMillan,  31  Ala.  711. 


653  PROOFS. 

because,  being  intelligible,  they  exhibit  a  plain  and  obvious  un- 
certainty,^ In  the  first  instance,  the  case  admits  of  two  varieties  : 
the  terms,  though  at  first  sight  unintelligible,  may  yet  be  capable  of 
having  a  meaning  annexed  to  them  by  extrinsic  evidence,  just  as  if 
they  were  written  in  a  foreign  language/  as  when  mercantile  terms" 
are  used,  which  amongst  mercantile  men  bear  a  distinct  and  definite 
meaning,  although  others  do  not  comprehend  them  ;"  *the 
L  -•  term  used  may,  on  the  other  hand,  be  capable  of  no  distinct 
and  definite  interpretation.  Now  it  is  evident,  that  to  give  effect  to 
an  instrument,  the  terms  of  which,  though  apparently  ambiguous,  are 
yet  capable  of  having  a  distinct  and  definite  meaning  annexed  to 
them,  is  no  violation  of  the  general  principle,  for  in  such  a  case  effect 
is  given,  not  to  any  loose  conjecture  as  to  the  intent  and  meaning  of 
the  party,  but  to  the  expressed  meaning;  and  that,  on  the  other  hand, 
Avhere  either  the  terms  used  are  incapable  of  any  certain  or  definite 
meaning,  or  being  in  themselves  intelligible  exhibit  a  plain  and  obvi- 
ous uncertainty,  and  are  equally  capable  of  different  application,  to 
give  an  effect  to  them  by  extrinsic  evidence  as  to  the  intention  of  the 
party,  would  be  to  make  the  supposed  intention  operate  independ- 
ently of  any  definite  expression  of  such  intention.  By  patent  ambi- 
guity, therefore,  must  be  understood  an  inherent  ambiguity,  which 
cannot  be  removed  either  by  the  ordinary  rules  of  legal  construction, 

"  As,  where  an  estate  is  left  by  will  to  one  of  the  three  sons  of  /.  8.^  without 
specifying  which. 

'And  see,  where  expression  grammatically  ambiguous  may  be  explained,  pos<, 
p.  709. 

"  Robertson  v.  Jackson,  2  C.  B.  (52  E.  C.  L.  R.)  412  ;  Lewis  v.  Marshall,  7  M. 
&  G.  (49  E.  C.  L.  R.)  729  ;  Drummond  v.  Attorney-General,  2  H.  of  L.  C.  837  ; 
Bold  V.  Rayner,  1  M.  &  W.  343 ;  Spicer  v.  Cooper,  1  Q.  B.  (41  E.  C.  L.  R.)  424 ; 
Clayton  v.  Cregson,  5  A.  &  E.-  (31  E.  C.  L.  R.)  302;  Simpson  v.  Margitson,  11 
Q.  B.  (63  E.  C.  L.  R.)  23;  and  see  other  cases,  ^osi!,  pp.  701,  705. 

^  Thus  where  a  creditor  agreed  with  others  to  watch  a  commission  of  bank- 
rupt, supposed  to  be  fraudulent,  "  and  to  contribute  in  the  usual  way,"  parol 
evidence  was  admitted  to  show  that  by  that  expression  it  was  meant  that  each 
creditor  should  contribute  in  proportion  to  his  claim  against  the  bankrupt,  with- 
out mutual  responsiljility  :  Taylor  v.  Cohen,  4  Bing.  (13  E.  C.  L.  R.)  53.  So,  in 
the  case  of  a  will,  where  its  characters  are  diflBcult  to  be  deciphered,  or  its 
language  is  unintelligible  to  an  ordinary  reader,  the  testimony  of  persons 
skilled  in  deciphering  writing,  or  who  understand  the  language,  is  admissible 
for  the  purpose  of  explanation  :  Goblet  v.  Beechey,  3  Sim.  24  ;  Masters  v.  Masters, 
1  P.  Wms.  421  ;  Norman  v.  Morrell,  4  Ves.  709.  So,  if  the  testator  express  him- 
self in  terms  peculiar  to  a  particular  trade  or  calling:  Smith  v.  Wilson,  3  B.  & 
Ad.  (2!)  E.  C.  L.  R.)  728;  Richardson  v.  Watson,  3  B.  &  Ad.  (23  E.  C.  L.  R.) 
787  ;  Attorney- General  v.  Plate  Glass  Company,  1  Anst.  39. 


PAROL    EVIDENCE    TO     VARY,     ETC.  654 

or  by  the  application  of  extrinsic  and  explanatory  evidence,  showing 
that  expressions  primd  facie  unintelligible  are  yet  capable  of  convey- 
ing a  certain  and  definite  meanino;. 

According  to  these  principles,  parol  evidence  is  never  admissible 
to  explain  an  ambiguity  which  is  not  raised  by  extrinsic  facts. ^ 
Thus,  upon  a  devise  to  one  of  the  sons  of  J.  S.,  who  has  several, 
evidence  is  not  admissible  to  *show  that  one  in  particular  r>|:/:^cr-i 
was  meant  ;^  and  the  devise  is  void  for  uncertainty."^^ 

y  Doe  V.  Westlake,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  57  ;  Sanderson  v.  Piper ^  5  Bin^. 
N.  C.  (35  E.  C.  L.  R.)  425. 

^  2  Vern.  624,  625 ;  Lord  Cheijneifs  case,  5  Co.  68,  5.  v. ;  Harris  v.  Bishop  of 
Lincoln,  2  P.  Wms.  137,  infra.  In  Harris  v.  Bishop  of  Lincoln,  2  P.  Wms.  135, 
where  a  man  limited  his  estate  by  will  to  his  own  right  heirs  by  his  mother's 
side,  Lord  Macclesfield  held  that  he  might  mean  either  the  heir  of  his  mothers 
father,  or  of  his  mother's  mother,  and  admitted  parol  evidence  to  prove  which  he 
meant.     But  see  Doe  v.  Hiscocks,  5  M.  &  W.  363. 

"  Ibid. 

^  Latent  ambiguity  may  be  explained  by  parol  evidence  :  Wilson  v.  Robertson, 
7  J.  J.  Marsh.  78  ;  Crawford  v.  Jarrett,  2  Leigh.  630 ;  Peisch  v.  Dixon,  1  Mason 
9  ;  Bank  of  United  States  v.  Dana,  6  Pet.  51  ;  Waterman  v.  Johnson,  13  Pick. 
261  ;  Patrick  v.  Grant,  2  Shepl.  233;  Doe  v.  Jackson,  1  S.  &  M.  494  ;  Paysant 
V.  Ware,  1  Ala.  160;  Brainerd  v.  Coicdry,  16  Cowen  270;  Harris  v.  Z)oe,  4 
Blackf.  369  ;  Ward  v.  Espy,  6  Humph.  447  ;  Hall  v.  Davis,  36  N.  H.  569  ;  Old 
Colony  Railroad  Co.  v.  Evans,  6  Gray  25 ;  Terpenning  v.  Skinner,  30  Barb. 
373;  Jackson  V.  Payne,  2  Mete.  (Ky.)  567;  Brown  v.  Brown,  4?>  N.  H.  17. 
•Junior  forms  no  part  of  a  man's  name,  and  where  there  are  two  persons  of  the 
same  name,  evidence  by  parol  is  admissible  to  show  which  one  was  intended  in 
a  given  case  :  State  v.  Weare,  38  N.  H.  314.  A  patent  ambiguity  cannot  be  ex- 
plained :  Webster  v.  Atkinson,  4  N.  II.  21  ;  Davis  v.  Davis,  8  Mo.  56  ;  Richmond 
Trading  Co.  v.  Farquar,  8  Blackf.  89  ;  Hyatt  v.  Pugsley,  23  Barb.  285 ;  Panton 
v.  Teft,  22  111.  366;  McNair  v.  Toles,  5  Minn.  435.  The  rule  of  Lord  Bacon 
that  ''  ambiguitas  patens,  is  never  holpen  by  averment''  is  subject  to  qualifica- 
tion, and  parol  evidence  may  be  admissible  to  explain  a  written  agreement : 
Fish  v.  Bubbard,  21  Wend.  651.  Where  a  word  is  abbreviated  in  a  writing, 
proof  may  be  heard  to  show  its  meaning  or  what  particular  word  it  was  in- 
tended to  abbreviate  :  Hite  v.  State,  9  Yerg.  357.  For  other  cases  as  to  patent 
and  latent  ambiguity  ;  see  Bell  v.  Woodward,  46  N.  II.  315  ;  Hardy  v.  Matthews, 
38  Mo.  121  ;  Myers  v.  Eddy,  47  Barb.  263  ;  Best  v.  Hammond,  5  P.  F.  Smith 
409;  Kincaid  v.  Lowe,  1  Phill.  (Eq.)  41  ;  Crawford  v.  Brady,  35  Ga.  184;  Wil- 
liams V.  Watcjs,  36  Ibid.  454;  Shultze  v.  Baily,  40  Mo.  69;  Master  v.  Freemar>, 
17  Ohio  St.  323  ;  Wren  v.  Fargo,  2  Oreg.  19  ;  Henderson  v.  Owen,  54  Me.  372  ; 
Midlothian  Co.  v.  Fenney,  18  Gratt.  304  ;  Methoff  v.  Byrne,  20  La.  Ann.  363 ; 
Piper  v.  True,  36  Cal.  606;  Guy  v.  Barnes,  29  Md.  103  ;  Clark  v.  Powers,  45 
111.  283  ;  Donnelly  v.  Simonton,  13  Minn.  301 ;  Campbell  v.  Johnson,  44  Mo.  247  ; 
Suffern  v.  Butler,  21  N.  J.  (Eq.)  410  ;  De  Wolf  v.  Crandall,  1  Sweeney  566  - 
Block  v.  Columbian  Lis.  Co.,  42  N.  Y.  393.  Howlett  v.  Hewlett,  56  Barb.  467 
39 


655  PROOFS. 

As  oral  evidence  is  inadmissible,  either  as  a  substitute  for  a  written 
instrument  required  by  law,  or  to  give  effect  and  operation  to  such 
an  instrument  where  it  is  defective,  it  follows  a  fortiori  that  it  is 
not  admissible  to  contradict,  or  even  to  vary,  any  instrument  to 
which  an  exclusive  operation  is  given  by  law,  whether  that  exclu- 
sive quality  result  from  a  positive  rule  of  law,''  or  from  private  com- 
pact. 

Where  the  terms  of  an  agreement  are  reduced  to  writing,  the 
document  itself,  being  constituted  by  the  parties  as  the  expositor  of 
their  intentions,  is  the  only  instrument  of  evidence  in  respect  of  that 
agreement,  which  the  law  will  recognize  so  long  as  it  exists,  for  the 
purposes   of    evidence.*"      If    the  parties    have    contracted  by  deed, 

•»  E.  g.,  under  the  Statute  of  Frauds  ;  Marshall  v.  Lijnn,  6  M.  &  W.  109. 

"Preston  v.  Merceau,  12  Bl.  R.  1249;  Hodges  v.  Drakeford^  1  N.R.  270; 
Pym  V.  Blackburn,  3  Ves.  34.  It  is  a  general  rule,  that  where  an  agreement  has 
been  reduced  to  writing,  evidence  of  oral  declarations,  though  made  at  the  same 
time,  shall  not  be  admitted  to  contradict  or  to  alter  it ;  and  see,  per  Lord  Denman, 
C.  J.,  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  G4.  A  written  agree- 
ment, however,  where  it  is  not  under  seal,  maybe  altered  by  the  addition  of  new 
terms  by  an  oral  agreement,  which,  in  fact,  constitutes  a  new  agreement,  incor- 
porating the  former  one ;  or,  as  has  been  seen,  such  an  agreement  may  be  wholly 
discharged  by  parol,  before  any  breach  has  occurred  :  Lord  Milton  v.  Edgtvorth, 
5  Bro.  P.  C.  313.  In  such  cases  it  is  obvious  that  the  evidence  is  adduced,  not 
to  vary  the  terms  of  an  existing  original  agreement,  but  to  show  that  it  has  been 
superseded  or  discharged.  And,  in  Bi/ivater  v.  Richardson.  1  Ad.  &  E.  (28  E. 
C.  L.  R.)  508,  it  was  held  that  a  written  warranty  of  the  soundness  of  a  horse 
might  be  limited  to  twenty-four  hours,  by  rules  painted  on  a  board  at  the  place 
of  sale  ;  and  see  Smart  v.  Hgde,  8  M.  &  W.  723  ;  Jefreg  v.  Walton,  1  Stark.  C. 
(2  E.  C.  L.  R.)  267.  What  took  place  in  court  previous  to  a  rule  being  made  is 
inadmissible,  the  court  can  only  look  to  the  rule  itself:  Edivards  v.  Cooper,  3 
C.  &  P.  (14  E.  C.  L.  R.)  277.  The  auctioneer's  declarations,  where  there  are 
printed  conditions  which  are  signed,  are  inadmissible :  Gunnis  v.  Erhart,  1  II. 
B.  289  ;  Powell  v.  Edmonds,  12  East  6.  So,  in  Shelton  v.  Livius,  2  C.  &  J.  411, 
where  the  auctioneer  signed  a  memorandum  referring  to  the  particulars  of  sale. 
But  where  the  particulars  are  not  signed,  or  are  not  referred  to  in  the  contract, 
the  auctioneer's  declaration  that  some  of  the  articles  in  the  catalogue  are  differ- 
ent from  their  description  therein,  is  admissible  :  Eden  v.  Blake,  13  M.  &  W.  614, 
post.  In  an  action  for  work  and  labor,  in  building,  it  appeared  that  there  was 
an  agreement  in  writing  relating  to  the  claim,  and  the  plaintiff  was  not  allowed 
to  proceed  without  producing  it,  nor  even  to  recover  for  items  as  extras,  as  the 

Arthur  v.  Roberts,  60  Il)id.  580.  If  there  is  any  uncertainty  as  to  the  meaning 
of  the  language  used  in  a  written  contract  parol  evidence  is  admissible  to  explain 
it:  Lancey  V.  Plicemx  Lis.  Co.,  56  Me.  562;  Stoops  v.  Smith,  100  Mass.  63; 
Durham  v.  Gill,  48  111.  151  ;  Richmond  R.  R.  Co.  v.  Snead,  19  Gratt.  354  ;  Hal- 
stead  V.  Meeker'' s  Ex'rs,  3  Green  136. 


PAROL     EVIDENCE     TO     VARY,     ETC.  656 

as  the   *obligation   under   seal   imports  greater  deliberation    r^/^r/>-i 
and  more  solemnity  than  a  mere  written  agreement  which  is 
not  under  seal,  no  evidence,  whether  oral  or  written,  *which 


is    not    under    seal,    can    be   admitted    to    contradict    or    to 
vary  it.** 

agreement  was  the  proper  evidence  to  show  wliat  the  extras  were ;  Vincent  v. 
Cole,  M.  &  M.  (22  E.  C.  L.  R.)  257  ;  Jones  v.  Howell,  4  Dowl.  176  •,  Bvxton  v. 
Cornish,  12  M.  &  W.  426.  Where,  in  an  action  for  use  and  occupation,  it  ap- 
peared, upon  cross-examination  of  the  plaintiff 's  witness,  that  there  was  an  agree- 
ment in  writing,  which  could  not  be  produced,  not  having  been  stam])ed,  the 
plaintiff  was  non-suited:  Brewer  v.  Palmer,  3  Esp.  213;  R.  v.  Rawdeii;  Fenn  v. 
Griffith,  supra,  note  (m).  The  rule  (\fi&H  not  apply  where  a  mere  memorandum 
has  been  made  in  writing  preparatory  to  an  agreement,  but  has  not  been  signed 
as  such:  Doe  v.  Cartwright,  3B.  &  Aid.  (5  E.  C.  L.  R.)  326;  nor  where  a  docu- 
ment containing  the  terms  of  holding  has  been  read  over  to  a  tenant,  who  does 
not  sign,  but  acquiesces  and  holds  under  them  :  Lord  Bolton  v.  Tomlin,  5  A.  it 
E.  (31  E.  C.  L.  R.)  856  ;  Trecichitt  v.  Lambert,  10  A.  &  E.  (37  E.  C.  L.  R.)  470  : 
nor  where  the  terms  of  a  statute-hiring  were  supposed  to  have  been  put  down  at 
the  time  by  the  chief  constable's  clerk,  but  the  parties  did  not  sign  (or,  as  far  as 
appeared  read)  the  writing:  E.  v.  Inhabitants  of  Wrangle,  2  A.  &  E.  (29  E.  C. 
L.  R.)  514  ;  nor  where  the  terms  of  a  verbal  contract  of  sale  are  afterwards  put 
into  writing  by  the  vendor  or  his  agent,  as  a  memorandum  of  the  transaction  to 
assist  his  recollection,  but  are  not  signed  by  the  vendee:  Allen  v.  Pink,  4  M.  & 
AV.  140  ;  Dalison  v.  Stark,  4  Esp.  163  ;  nor  where  the  writing  does  not  contain 
all  the  terms  of  the  agreement:  Lockett  v.  Nicklin,  2  Ex.  93. 

^  Lainson  v.  Tremere,  1  A.  &  E.  (28  E.  C.  L.  R.)  792  ;  West  v.  Blakeway,  9  D. 
P.  C.  846.  A  particular  of  sale,  or  agreement  for  the  purchase,  is  not  admissi- 
ble to  show  what  was  conveyed  by  the  deed  of  conveyance  :  Doe  v.  Webster,  12 
A.  &  E.  (40  E.  C.  L.  R.)  442;  Williams  v.  Morgan,  15  Q.  B.  (69  E.  C.  L.  R.) 
782.  And  where  a  subsequent  parol  agreement  is  inconsistent  with  a  deed,  it 
cannot  be  set  up  against  the  deed  :  Leslie  v.  De  la  Torre,  cited  12  East  583,  post, 
p.  661.  Where  a  deed  stated  the  purchase-money  of  land  to  have  been  paid, 
evidence  is  inadmissible  of  an  agreement  that  part  should  be  satisfied  by  work 
to  be  done  by  the  purchaser,  and  that  the  money  had  not  been  paid  :  Baker  v. 
Deioey,  1  B.  &  C.  (8  E.  C.  L.  R.)  704;  Baker  v.  Heard,  5  Ex.  959.  Where 
parties  contract  by  deed,  assumpsit  will  not  lie  ;  for  where  a  man  resorts  to  a 
higher  security  the  law  will  not  raise  an  assumpsit :  Toussaint  v.  Martinnant,  2 
T.  R.  100  ;  as,  where  a  surety  takes  a  bond  from  his  principal  :  Ibid.  So,  where  a 
lessor  assigns  his  lease  by  the  words  "grant  and  assign,"'  but  without  any  ex- 
press covenant  for  quiet  enjoyment,  and  the  assignee  is  distrained  upon  for  rent 
due  before  the  assignment,  he  cannot  sue  the  assignor  in  assumpsit  for  money 
paid  because  of  the  covenant  contained  in  the  word  "  grant  :"  Baber  v.  Harris, 
9  A.  &  E.  (39  E.  C.  L.  R.)  533 ;  but  see  8  &  9  Vict.  c.'lOO,  s.  4 ;  and  a  simple 
contract  debt  is  merged  in  a  bond  given  for  it:  Price  v.  Moulton,  20  L.  J.,  C.  P. 
102.  So,  a  plaintiff  cannot  recover  in  iridebitatus  assumpsit  upon  an  executed 
consideration,  where  the  contract  was  by  deed  :  Atfi/  v.  Parish,  1  N.  R.  104;  see 
Pardoe  v.  Price,  16  M.  &  W.  451.  But  an  action  of  assiwipsit  may  be  main- 
tained  upon   an   agreement  subsequent  to  the  making  of  a  deed  of  charter- 


657  PROOFS. 

Where  the  issue  was  on  the  plea  of  j^^ene  admmistravit,  evidence 
that  the  defendant  upon  executing  a  bond  of  submission  to  arbitra- 
tion, had  agreed  to  pay  what  shoukl  be  awarded  to  be  due,  was  re- 
r*r"m  j^cted,  as  being  either  *contradictorj  of,  or  in  addition  to 
the  agreement  in  the  bond.®  So,  oral  evidence  is  not  admis- 
sible  to  show  that  a  bond,  conditioned  for  the  payment  of  money  to 
the  wife  in  case  she  survived,  was  intended  in  lieu  of  dower. ^  Nor 
is  such  evidence  admissible  to  show  that  a  clause  of  redemption  was 
omitted  in  an  annuity-deed,  lest  it  should  render  the  transaction 
usurious.^ 

Where  A.  granted  an  annuity  for  his  own  life  to  B.,  which  was 
secured  by  a  bond  and  warrant  of  attorney,  and  judgment  was 
entered,   the   court  would   not,    after   the   death   of   B.,   permit   the 

party,  the  parol  contract  not  being  inconsistent  with  the  contract  by  deed  : 
White  V.  PcuMiis,  12  East  578  ;  Morton  v.  Burn,  7  A.  &  E.  (34  E.  C.  L.  R.  19. 
So,  -where  a  mortgage-deed  contained  no  covenant  to  pay  the  money  lent,  debt 
for  money  lent  will  lie:  Yates  y.  Aston,  4  Q.  B.  (45  E.  C.  L.  R.)  182.  Where 
the  obligor  of  a  respondentia  bond  promised,  by  endorsement  upon  it,  to  pay 
the  amount  to  any  assignee,  it  was  held  that  an  assignee  might  maintain  in- 
dehitatus  assumpsit:  Fenner  v.  Mears,  2  Bl.  1269;  but  this  was  doubted  by 
Lord  Kenyon,  in  Johnson  v.  Collings,  1  East  104,  and  by  Bayley,  -J.,  in  White 
V.  Parkins,  12  East  582;  and  is  put  by  Blackstone,  J.,  in  his  judgment,  on  the 
ground  of  the  whole  of  the  transactions,  one  of  which  was  an  extension  of 
time. 

*  Pearson  v.  Henry,  5  T.  R.  6  ;  the  evidence  was  rejected  at  the  trial  ;  and 
upon  motion  for  a  new  trial  the  propriety  of  the  rejection  was  not  disputed  :  1 
Bro.  C.  C.  54,  93  ;  and  see  the  observations  of  Blackstone,  J.,  in  Preston  v.  Mer- 
ceaii,  Bl.  1250;  and  infra,  662. 

'  See  Mascal  v.  Mascal,  1  Yes.  sen.  323  ;  Finney  v.  Finney,  1  Wils.  34 ;  infra, 
666,  note  (z). 

8  Lord  Irnham  v.  Child,  1  Bro.  C.  C.  92  ;  Lord  Portmore  v.  Morris,  2  Bro.  C. 
C.  219 ;  Hare  v.  Shearwood,  3  Bro.  C.  C.  168  ;  1  Ves.,  jun.  241.  But  where  a 
man  and  woman,  being  about  to  marry,  conveyed  their  lands  to  trustees,  in 
trust,  to  dispose  of  the  rents  as  the  wife,  without  the  consent  of  the  husband, 
should  appoint;  notwithstanding  which  the  husband  received  the  rents  during 
his  life,  and  the  wife  after  his  death  filed  a  bill  in  equity  for  an  account,  the 
Court  admitted  parol  evidence  to  prove  that,  before  the  settlement  was  made, 
the  husband  and  wife  agreed  that  the  premises  should  be  in  trust  for  them 
during  their  joint  lives,  and  that  they  were  settled  otherwise  merely  to  protect 
them  from  sequestration  by  Cromwell  ;  and  on  that  ground  relieved  against  a 
covenant  in  the  settlement,  by  which  the  trustees  were  bound  to  pay  the  rents 
as  the  wife  should  appoint:  Harvei/  v.  Harvey,  2  Ch.  C.  180  ;  Fitz.  213.  But 
where  articles  were  reduced  to  writing,  and  signed  by  the  parties,  and  after- 
wards drawn  up  at  length,  and  executed,  Reynolds,  B.,  held  that  the  articles 
could  not  be  restrained  by  the  memorandum,  there  being  no  reference  from  the 
articles  to  the  memoratnliim  :  Lloyd  v.   Wynne,  5  G.  2  ;  1  Ford.  136. 


PAROL    EVIDENCE    TO     VARY,     ETC.  658 

attorney  of  B.   to  prove  a  parol   agreement   that   A.   should  be  at 
liberty  to  redeem  the  annuity  on  terms. *" 

*So,  in  action  on   a  bond  conditioned  for   payment  abso-    r^prq-v 
lutely,   the   defendant   cannot    plead  an   agreement   that   it 
should  operate  merely  as  an    indemnity.'     Where  a  modern  lease  by 
deed  uses  the  term  Michaelmas,  evidence  is  inadmissible  to  show  that 
Old  Michaelmas  was  meant.'' 

In  an  action  of  trespass,  where  the  defendant  insists  upon  a  release 
executed  by  the  plaintiff,  in  terras  including  the  trespass  in  question, 
the  plaintiff  cannot  defeat  the  effect  of  the  release  by  proof  that  the 
arbitrators  who  awarded  the  release  have  not  taken  into  consideration 
the  particular  trespass.' 

So,  although  it  is  an  established  rule  that  a  party  may  aver 
another  consideration  which  is  consistent  with  the  consideration 
expressed,  c.  g.,  as  being  in  addition  to  it,  or  as  included  in  its  gene- 
ral terms,  no  averment  can  be  made  contrary  to  that  which  is  ex- 
pressed in  the  deed."  Where  the  conveyance  is  mentioned  to  be  in 
consideration  of  love  and  affection,  as  also  for  other  considerations, 
proof  may  be  given  of  any  other,  for  this  is  consistent  with  the  terms 
of  the  deed."  But  if  one  specific  *consideration  be  alone 
mentioned  in  the  deed,  it  has  been  said  that  no  proof  can  be    '-  ^ 

given  of  any  other,  for  this  would  be  contrary  to  the  deed ;  for  where 
the  deed  says  it  is  in  consideration  of  such  a  particular  thing,  it  im- 

''  Hayiies  v.  Hare,  1  11.  Bl.  659  ;  and  j^er  Lord  Thurlow,  nothing  can  be  added 
to  a  written  agreement,  unless  there  be  a  clear  subsequent  independent  agi'ee- 
ment  varying  the  former  ;  but  not  where  it  is  matter  passing  at  the  same  time 
with  the  written  agreement:  Rich  v.  Jackson,  4  Bro.  C.  C.  519  ;  Lord  Portmore 
Y.Morris,  2  Bro.  C.  C.  219. 

*  Mease  v.  Mease,  Cowp.  47  •,  Ridout  v.  Bristow  et  ux.,  1  C.  &  J.  231. 

"  Doe  V.  Lea,  11  East  312  ;  Stnith  v.  Walton,  8  Bing.  (21  E.  C.  L.  R.)  238  ;  and 
see  Cadhy  v.  Martinez,  11  A.  &  E.  (39  E.  C.  L.  R.)  720.  But  in  the  case  of  a 
parol  demise,  such  evidence  was  admitted:  4  B.  &  Aid.  (6  E.  C.  L.  R.)  588. 
Where  a  written  agi'eement  stipulates  that  goods  are  to  be  taken  on  hoard  forth- 
icHJi,  it  cannot  be  shown  by  parol  that  in  two  days  was  meant :  Simpson  v.  Hen- 
derson, M.  &  M.  (22  E.  C.  L.  R.)  300. 

'  Shelling  v.  Farmer,  Str.  646. 

"  Mildniay's  case,  1  Co.  Rep.  174;  BedelVs  case,  7  Co.  Rep.  40;  2  Roll.  Ab. 
786.  As,  that  the  consideration  was  different  from  that  expressed  in  the  deed  : 
Hill  V.  Manchester  and  Salford  Watericorks,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  544; 
Lainson  v.  Tremere,  1  A.  &  E.  (28  E.  C.  L.  R.)  792;  Carpenter  v.  Buller,  8  M. 
&  W.  209 ;  where  it  was  held  that  a  recital  in  an  instrumant,  even  not  under 
seal,  may  have  the  same  effect:  Bowman  v.  Taylor,  2  A.  &  E.  (29  E.  C.  L.  R.) 
278  ;    Wiles  v.  Woodman,  5  Ex.  557. 

°  Per  Lord  Ilardwicke,  Peacock  v.  Monk,  1  Ves.  128;  and  see  Villiers  v.  Bca- 
mont,  2  Dyer  146  a ;    Vernon's  case,  4  Rep.  3  ;  7  D.  &  L.  141. 


G60  PROOFS. 

ports  the  whole  consideration,  and  negatives  any  other."  Tlie  case 
where  no  consideration  is  expressed  in  the  deed,  is,  according  to  Lord 
Hardwicke,  a  middle  case;  and  he  hehl  that  proof  of  a  valuable  con- 
sideration in  such  a  case  was  admissible.''  But  in  general,  as  will  be 
seen,  evidence  as  to  the  real  consideration  is  in  all  cases  admissible 
with  a  view  to  prove  fraud,''  or  to  rebut  the  presumption  of  fraud. "^ 

Upon  the  same  principles,  evidence  is  inadmissible  of  a  parol  agree- 
ment prior  to  or  contemporary  with  the  written  instrument,  and  which 
varies  its  terms  ;  as  to  show  that  a  note  made  payable  on  a  day  certain 
was  to  be  payable  upon  a  contingency  only,'  or  upon  some  other 
day,'  or  not  until  the  death  of  the  maker."  Where  a  policy  was  on  an 
^ ,  ,  ^^  adventure  from  *  Archangel  to  Leghorn,  the  defendant  was  not 
^  -^  allowed  to  prove  an  agreement  previous  to  the  signing  of  the 
policy,  that  the  adventure  should  begin  from  the  Downs  only.''  Where 
a  ship  was  chartered  to  wait  for  convoy  at  Portsmouth,  it  was  held 
that  evidence  could  not  be  received  of  an  agreement  to  substitute 
Corunna  for  Portsmouth.^ 

°  Ibid. ;  Gi'een  v.  Weston,  Say.  209  ;  Stratton  v.  Rastall,  2  T.  R.  366  ;  but  see 
Gale  V.  Williamson.  8  M.  &  W.  405 ;   Clifford  v.  Turrell,  1  Y.  &  C,  N.  C.  138. 

P  Peacock  v.  Monk,  1  Ves.  128. 

^  Infra,  p.  672. 

'  Gale  V.  Williamson,  8  M.  &  W.  405. 

^  nawson  V.  Walker,  1  Stark.  C.  (2  E.  C.  L.  R.)  361 ;  Foster  v.  JoUi/,  1  C,  M. 
&  R.  703  ;  Adams  v.  Wordleij,  1  M.  &  W.  374 ;  Campbell  v.  Hodgson,  Gow  (5 
E.  C.  L.  R.)  lA-  Brown  v.  Langleij,  4  M.  &  G.  (43  E.  C.  L.  R.)  466  ;  see  Webb 
V.  Salmon,  7  D.  &  L.  324;  Moseley  v.  Hanford,  10  B.  &  C.  (21  E.  C.  L.  R.)  729. 
It  is  not,  it  seems,  competent  to  a  party  who  appears  on  the  face  of  a  promissory 
note  to  be  a  principal,  to  show  that  he  is  merely  a  surety :  Price  v.  Edmonds, 
10  B.  &  C.  (21  E.  C.  L.  R.)  578  ;  but  see  Fentum  v.  Pocock,  5  Taunt.  (1  E.  C. 
L.  R.)  192;  Fox  V.  Frith,  10  M.  &  W.  131  ;  Healaj  v.  Sior;/,  3  Ex.  3.  But 
althou_o;h  a  consideration  be  alleged  in  the  bill  or  note,  a  party  may  show  it  to 
have  failed,  or  to  have  been  illegal,  or  that  the  consideration  was  really  a  dif- 
ferent one:  Solli/  V.  Einde,  2  C.  &  M.  516  ;  Abbott  v.  Hendricks,  1  M.  &  G.  (39 
E.  C.  L.  R.)  791. 

'  Free\.  Hawkins,  8  Taunt.  (4  E.  C.  L.  R.)  92.  Or  that  it  should  be  renewed: 
Hoare  v.  Graham,  3  Camp.  57  ;  and  ^os^,  p.  666. 

"  Woodbridf/e  v.  Spooner,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  233  ;  unless  indeed  by 
way  of  proving  want  of  consideration  :  Soil;/  v.  Hinde,  2  C.  &  M.  516  ;  see  tit. 
Bills  OF  Exchange,  Vol.  II.  So  parol  evidence  is  unavailing  to  show  that  a 
transfer  of  a  ship,  which  was  absolute  on  the  bill  of  sale,  was  intended  as  a 
security  only  :  Robinson  v.  M'' Donnell,  2  B,  &  Aid.  134, 

'  Kaiues  v.  Kidghtly,  Skin.  54;  Uhde  v.  Walters,  3  Camp.  16;  Weston  y. 
KmcH,  1  Taunt.  115.  Note,  Kaines  v.  Knightly  is  cited  in  Bates  v.  Grabham,  2 
Sulk.  444,  but  nii.sHtated. 

y  Leslie  v.  J)e  la  Tcrre,  cited  12  East  583.  Note, — that  the  charter-party 
was  under  seal. 


PAROL     EVIDENCE     TO     VARY,     ETC.  661 

Where  a  contract  is  entered  into  for  the  sale  of  goods,  and  a  bill 
of  sale  afterwards  executed,  the  bill  of  sale  is  the  only  evidence  of 
the  contract  which  can  be  received,  and  parol  evidence  of  the  agree- 
ment cannot  be  received,  although  the  written  instrument  of  sale  be 
inadmissible  for  want  of  a  stamp." 

In  general,  where  a  contract  has  been  reduced  into  writing,  nothing 
which  is  not  found  in  the  writing  can  be  considered  as  part  of  the 
contract.** 

*The  same  rule  applies  if  such  parol  agreement  add  to  the 
terms  expressed.  Thus,  where  the  agreement  was,  that  A.^  •-  ^ 
for  certain  considerations,  should  have  the  produce  of  Boreham's 
Meadow,  it  was  held  that  he  could  not  prove  by  parol  that  he  was  to 
have  both  the  soil  and  produce  of  Millcroft  and  Boreham's  Meadow  ;° 
and  in  the  case  of  Preston  v.  Mareeau,'^  the  landlord,  in  an  action 
for  use  and  occupation,  under  a  Avritten  agreement  for  rent  at  =£26 
per  annum,  Avas  not  allowed  to  show,  in  addition^  by  parol  evidence, 
that  the  tenant  had  also  agreed  to  pay  the  ground-rent.  Mr.  J. 
Blackstone  is  said  in  that  case  to  have  observed,  that  although  the 
court  could  neither  alter  the  rent,  nor  the  terms  which  were  expressed 
in  the  agreement,  yet  that  with  respect  to  collateral  matters  it  might 
be  different ;  the  plaintiff  might  show  who  was  to  put  the  house  into 
repair,  or  the  like,  concerning  which  nothing  was  said.  The  question, 
how  far  collateral  matter  may  be  proved  by  parol,  will  be  considered 

^  Lano  V.  Neule,  2  Stark.  C.  (3  E.  C.  L.  R.)  105.  The  previous  contract  there 
was  for  a  ship,  forty  tons  of  iron  kintlage,  &c.  The  bill  of  sale  was  of  a  ship, 
together  with  all  stores,  &c.,  in  the  usual  form,  and  silent  as  to  kintlage  ;  and 
held,  that  the  vendee  could  not  recover  for  non-delivery  of  the  kintlage. 

*  Per  Lord  Kenyon,  in  RuUestoii  v.  Hibbert,  3  T.  R.  413  ;  and  see  Drakeford 
v.  Hodges,  1  N.  R.  270,  where  it  was  held,  that  if  a  parol  warranty  or  agree- 
ment to  assign  be  reduced  to  writing,  and  the  assignment  be  afterwards  legally 
executed,  the  warranty  cannot  be  proved  by  parol. 

"  P.  C.  in  Kain  v.  Old,  2  B.  &  C.  (9  E.  C.  L.  R.)  634.  Note— that  the  first 
agreement  was  in  writing,  but  void  for  not  reciting  the  certificate  of  the  ship's 
registry  ;  and  see  Mei/er  v.  Everth,  4  Camp.  22  ;  Gardiner-  v.  Gray,  4  Camp. 
144;  Puivell  v.  Edmonds,  12  East  6  ;  Hope  v.  Atkins,  1  Price  143;  Pickering 
V.  Dowson,  4  Taunt.  779  ;  and  Countess  of  Rutland' s  case,  supra  ;  and  tit.  War- 
ranty. 

"  Meres  v.  Ansel,  3  Wils.  275  ;  and  see  Hope  v.  Atkins,  1  Price  143. 

^  Preston  v.  Marceau,  2  Bl.  1249.  So,  in  Rich  v.  Jackson,  4  Bro.  C.  C.  515, 
where  an  agreement  specified  the  rent  and  the  term,  but  was  silent  as  to  taxes, 
the  Court  refused  to  receive  parol  evidence  on  the  part  of  the  lessor,  that  previ- 
ous to  the  drawing  up  of  the  memorandum  it  had  been  agreed  and  understood 
by  the  parties  that  the  rent  was  to  be  paid  clear  of  all  taxes. 


662  PROOFS. 

hereafter."  At  present  it  may  be  observed,  that  where  an  agreement 
specifies  only  the  rent  and  the  term,  but  is  silent  as  to  repairs,  it 
is  obvious  that  such  an  agreement  may  be  as  completely  varied  by 
proof  of  an  additional  stipulation  that  the  landlord  should  lay  out  a 
specific  sum  in  alterations,  as  by  evidence  that  the  rent  shall  be  di- 
minished, without  any  stipulation  as  to  repairs.  Cases  in  which  the 
additional  terms  constitute  in  fact  a  new  agreement,  incorporating 
the  former  written  terms, ^  or  continuing  the  former  *con- 
L  '  J  tract,^  or  amount  to  a  substantive  collateral  agreement ;''  those 
also,  where  certain  terms  are  engrafted  upon  an  agreement ;  which  is 
silent  on  thepoint,  by  some  unknown  custom,  or  general  understanding;' 
and  lastly,  those  where  the  instrument  offered  as  evidence  to  prove  a 
collateral  fact,  has,  in  the  particular  instance,  no  exclusive  operation,*^ 
fall,  as  will  be  seen,  under  a  diff'erent  consideration. 

At  present,  assuming  the  particular  instrument  to  be  that  which 
the  parties  have  agreed  upon  as  the  evidence  of  their  intentions  in 
respect  of  the  particular  transaction,  the  only  question  is,  whether 
the  parol  evidence,  which  is  adduced  to  superadd  something  to  the 
written  agreement,  does  not  vary  that  agreement;  if  it  does,  it  is  in- 
admissible. 

Where  the  conditions  of  sale  described  only  the  number  and  kind 
of  timber- trees  to  be  sold  by  lot,  but  said  nothing  as  to  the  weight 
of  the  timber,    the   defendant,  in   an  action   for   not   completing  his 

^  Infra,  pp.  710,  716,  et  seq. 

'  Where  one  written  instrument  refers  to  another,  from  which  it  requires  ex- 
planation, with  sufficient  certainty,  the  latter  is  virtually  incorporated  with  the 
former  and  may  be  said  to  give  effect  to  it.  But  it  is  a  general  rule  of  law,  that 
an  instrument  properly  attested,  in  order  to  incorporate  another  instrument  not 
attested,  must  describe  it  so  as  to  be  a  manifestation  of  the  paper  meant  to  be 
incorporated,  in  such  a  way  that  the  Court  can  be  under  no  mistake  :  pei-  Lord 
Eldon,  C,  Smart  v.  Priijean,  6  Ves.  505;  and  see  Clayton  v.  Lord  Nugent,  13 
M.  &  W.  200. 

8  Supra,  p.  657 ;  Littler  v.  Holland,  3  T.  R.  590  ;  Marshall  v.  Lynn,  6  M.  & 
W.  109,  infra,  p.  725  ;  and  see  Warren  v.  Stagg,  cited  3  T.  R.  591  ;  Cvf\.  Penn, 
1  M.  &  S.  21  ;  Lord  Milton  v.  Edgworth,  5  Bro.  P.  C.  313. 

''  Granville  v.  Duchess  of  Beaufort,  1  P.  Wms.  114  ;  2  Vern.  648.  A  person, 
to  whom  money  was  due  from  the  vendor  of  goods  sold  )>y  auction,  agreed  with 
the  owner,  before  the  auction,  that  the  price  of  anything  she  might  buy  should 
be  set  against  the  debt,  and  she  became  the  purchaser  of  goods  and  was  entered 
as  such  by  the  auctioneer  ;  she  was  held  not  bound  by  the  conditions  of  sale,  one 
of  which  was  that  the  purchaser  should  pay  a  part  of  the  price  at  the  time  of 
sale,  iind  the  rest  on  delivery:  Bartlett  v.  Purnell,  4  A.  &  E.  (31  E.  C.  L.  R.) 
792. 

'  infra,  p.  710.  ''  Infra,  p.  716,  et  seq. 


PAROL    EVIDENCE    TO    VARY,     ETC.  663 

purchase  according  to  the  conditions,  was  not  permitted  to  prove 
that  the  auctioneer  had,  at  the  sale,  warranted  the  timber  to  amount 
to  a  certain  weight ;  *for  if  that  representation  induced  Iiim 
to  become  the  purchaser,  he  ought  to  have  had  it  reduced  to  ^  J 
writing  at  the  time.'  Lord  Ellenborough,  in  that  case,  observed, 
that  if  such  evidence  wei"e  admissible,  in  what  instance  might  not  a 
party,  by  parol  testimony,  superadd  any  term  to  a  written  agree- 
ment ?  which  would  be  setting  aside  all  written  contracts,  and  ren- 
dering them  of  no  effect.  In  such  cases  it  is  to  be  presumed  that 
the  parties,  in  expressing  their  intention,  have  expressed  the  whole 
of  it,  subject  to  those  incidents  and  consequences  which  the  law  an- 
nexes to  the  terms  which  they  have  used.  Hence,  where  a  written 
agreement  for  the  sale  of  goods  is  silent  as  to  the  time  of  delivery, 
in  which  case  the  law  implies  a  contract  to  deliver  them  within  a 
reasonable  time,  to  be  judged  of  according  to  the  circumstances, 
evidence  is  inadmissible  of  a  contemporaneous  oral  contract  by  the 
purchaser  to  take  them  away  immediately." 

Where  A.  agreed  to  take  B.  into  partnership  as  an  attorney,  no 
time  being  mentioned,  it  was  held  that  the  partnership  commenced 
from  the  time  of  the  agreetoent,  and  that  evidence  was  inadmissible 
to  show  that  the  agreement  was  not  to  take  effect  until  B.,  who  was 
not  then  an  attorney,  should  be  admitted." 

*One  who  executes  an  instrument  in  his  own  name  cannot    ^    ,  ^ 
defeat  an  action  by  showing  that  he  did  so  merely  as  agent    ■-          -• 
for  another."     Nor,  if  a  person  is  known  to  have  been  agent  for  the 

'  Poivell  V.  Edmonds,  12  East  6 ;  and  see  Buckmaster  v.  Harrop,  13  Ves.  471  ; 
Shelton  V.  Livius,  2  C.  &  J.  411  ;  Higginson  v.  Clowes,  15  Ves.  516  ;  Jenlcinsoti 
V.  Pepi/s,  cited  6  Ves.  330 ;  Rich  v.  Jackson,  4  Bro,  C.  C.  515  ;  Gunnis  v.  Erhart, 

1  H.  Bl.  289.  But  where,  previous  to  the  sale  of  a  leasehold  estate  by  auction, 
the  purchaser  promised  the  vendor  to  indemnify  him  against  the  covenants 
entered  into  by  the  lessee,  a  specific  performance  was  decreed,  although  the 
terms  of  the  sale  vrere  silent  as  to  such  indemnity  :  Pember  v.  Mathers,  1  Bro. 
P.  C.  54. 

""  Greaves  \.  Ashlin,  3  Camp.  426  ;  Halliley\.  Nicholson,  1  Price  404.  Where 
goods  are  ordered  by  letter  without  any  mention  of  time  of  payment,  and  they 
are  sent  with  an  invoice,  the  letter  and  invoice  not  amounting  to  a  contract, 
parol  evidence  may  be  given  that  they  were  sold  on  credit:  Lockett  v.  Nicklin, 

2  Ex.  93. 

°  Williams  v.  Jones,  5  B.  &  C.  (11  E.  C.  L.  R.)  109;  and  see  similar  instances 
where  reasonable  time,  or  some  other  term,  was  not  expressed,  but  implied  by 
law:  Greaves  v.  Ashlin,  3  Camp.  426;  Ford  v.  Yates,  2  M.  &  G.  (40  E.  C.  L. 
R.)  549. 

°  Magee  v.  Atkinson,   2  M.  &  W.  440.     Whether  his  principal  were  or  were 


665  PROOFS. 

defendant,  and  as  such  has  always  used  his  own  name  to  bind  the 
defendant,  can  the  defendant  show  that  a  contract  made  in  that  form, 
by  such  person,  was  made  on  his  own  account  and  after  he  had 
ceased  to  be  agent,  that  fact  not  having  been  previously  known  to 
the  plaintiif.P  Nor  can  a  principal,  whose  agent  contracts  in  writing 
in  his  own  name,  and  therein  describes  himsfelf  as  owner  of  the  thing 
as  to  which  he  contracts,  show  that  the  agent  was  merely  such,  and 
sue  upon  that  contract  as  principal.''  But  in  an  action  on  a  Avritten 
contract  between  the  plaintiff  and  a  third  party,  evidence  on  the 
part  of  the  plaintiff  is  admissible  to  show  that  the  contract  was  in 
fact  made  by  the  third  party,  not  on  his  own  account  but  as  the  agent 
of  the  defendant."^ 

Where  no  date,  or  an  impossible  one,  is  inserted  in  the  deed,  date 
is  construed  to  mean  delivery ;  but  where  a  date  is  given,  and  an  act 
is  to  be  done  at  a  certain  time  from  the  date,  the  party  bound  cannot 
allege  a  different  time  of  delivery,  with  a  view  to  alter  the  time  of 
performance.^ 

*Parol  evidence  is  also  inadmissible  for  the  purpose  of 
L  -'  altering  the  legal  operation  of  an  instrument,  by  evidence  of 
an  intention  to  an  effect  which  is  not  expressed  in  the  instrument.*  ^ 

not  known  at  the  time  of  the  contract:  Jones  v.  Littledale,  G  A.  &  E.  (33  E.  C. 
L.  R.)  486  ;  Higgins  v.  Senior,  8  M.  &  W.  834. 

p  Trueman  v.  Loder,  11  A.  &  E.  (39  E.  C.  L.  R.)  589. 

1  Humble  v.  Hunter,  12  Q.  B.  (64  E.  C.  L.  R.)  310.  But  the  mere  fact  of  a 
principal  having  in  the  contract  described  himself  as  agent,  but  not  having 
named  any  principal,  will  not  prevent  his  suing  on  the  contract:  Schmalz  \. 
Avery,  20  L.  J.,  Q.  B.  228. 

'  Wilson  v.  Hart,  7  Taunt.  (2  E.  C.  L.  R.)  295.  Or  that  a  third  party  was  a 
dormant  partner  with  the  defendant  who  signed  the  contract,  although  at  the 
time  of  contracting  the  plaintiiF  did  not  know  that  fact :  Beckham  v.  Drake,  9 
M.  &  W.  79  ;  confirmed  in  Cam.  Scacc.  11  M.  &  W.  315. 

«  Styles  v.  Wardle,  4  B.  &  C.  (10  E.  C.  L.  R.)  908 ;  Co.  Litt.46,  b.;  Com.  Dig. 
Fait,  b.  3;  Ojiey  v.  Hicks,  Cro.  Jac.  264;  and  infra,  tit.  Deed;  Armit  Y.Breame, 
2  Lord  Raym.  1076.  But  where  a  lease,  dated  Lady-day  1783,  purported  to 
commence  on  Lady-day  last  past,  evidence  was  admitted  to  show  that  the  lease 
was  in  fact  executed  after  that  date,  and  consequently  that  the  term  commenced 
Lady-day  1783,  not  1782;  Steele  v.  Mart,  4  B.  &  C.  (10  E.  C.  L.  R.)  272;  see 
JJoe  v.  Ulph,  13  Q.  B.  (66  E.  C.  L.  R.)  204. 

'  In  equity,  however,  it  seems  that  parol  evidence  is  admissible  to  show  that 
the  testator  intended  that  8[)ccific  legacies  should  be  paid  out  of  particular 
funds :  Clijf'  v.  Gibbons,  Lord  Raym.  1324.  But  not  to  show  that  a  testator 
intended  to  exempt  his  personal  estate  from  debts :  see  Reeves  v.  Newenham,  2 
Ridg.  21,  35,  44. 

*  Evidence  of  conversation  leading  to  a  contract  is  inadmissible :   Gilpins  v. 


PAROL     EVIDENCE    TO     VARY,     ETC.  666 

Thus  the  defendant  cannot  be  admitted  to  prove  that  at  the  time 
of  making  a  promissory  note,  it  was  agreed,  that  when  the  note  became 
due  payment  should  not  be  demanded,  but  that  the  note  shouhl  be 
renewed."  So,  also,  parol  evidence  is  inadmissible  to  show  that  a 
bond,  purporting  to  be  absolute,  was  intended  merely  as  an  indemnity, 
and  that  the  plaintiff  has  nbt  been  damnified  ;"  or  to  show  that  the 
directions  of  a  will  were  intended  to  operate  in  satisfaction  of  a 
bond '/  or  that  a  bond  given  by  a  husband  before  marriage,  condi- 
tional to  secure  ,£400  to  the  wife,  in  case  she  survived  the  husband, 

was   given   in   lieu  of  dower.^     Where  a   man  conveyed  his    ^    ^^„^ 

.  .  .  r*6671 

*estate  to  certain  uses,  reserving  to  himself  the  power  of  ^         ^ 

changing  or  revoking  them,  and  afterwards  conveyed  it  to  trustees, 
in  trust  to  pay  his  debts,  and  then  in  trust  to  reconvey,  it  was  held 
that  proof  of  a  declaration  by  one  of  the  trustees  under  the  latter 
deed,  that  the  party  did  not  intend  to  revoke  the  former  by  the  latter, 
was  inadmissible.* 

Parol  evidence  of  the  intention  of  the  testator  is  in  no  case  admis- 
sible to  contradict  the  express  terms  of  a  will.^     Where  a  legacy  was 

°  Hoare  v.  Graham,  3  Camp.  57 ;  Webb  v.  Salmon,  7  D.  &  L.  324,  in  Cam. 
Scacc. ;  Hogg  v.  Siiaith,  1  Taunt.  347  ;  see  tit.  Bills  of  Exchange. 

^  Mease  v.  Mease,  Cowp.  47.  Or,  that  where  a  bond  was  conditioned  for  pay- 
ment of  the  rent  of  certain  premises  recited  in  the  condition  to  have  been  de- 
mised bj  indenture  at  a  specified  rent,  the  rent  mentioned  in  the  indenture 
was  less  than  in  the  condition,  and  had  been  paid  :  Lainson  v.  Tremere,  1  A.  & 
E.  (28  E.  C.  L.  R.)  797.     See  ante,  p.  6G0,  note  [u). 

y  Jeacock  v.  Falkener,  1  ]?ro.  C.  C.  295. 

^  Finney  v.  Finnerj,  1  Wils.  84.  But  where  a  man,  Avho  had  ngreed  to  settle 
lOOZ.  a  year  on  his  intended  wife,  finding  himself  ill,  made  his  will,  and  after- 
wards left  her  lOOZ.  a  year,  and  recovering,  married  her,  Clarke,  B.,  held,  that 
evidence  was  admissible  to  show  that  he  intended  her  one  of  the  annuities  only : 
Mascal  v.  Mascal,  1  Ves.  sen.  323  ;  but  see  7  Will.  IV.  and  1  A^ict.  c.  26,  and 
tit.  Wills. 

'^  By  Reynolds.  B.,  and  by  the  Chancellor  and  Master  of  the  Rolls  :  Fitzgerald 
V.  Fauamberge,  Fitz.  207. 

^  A  testator,  havino;  copyhold  estates  in  North  C.  .and  South  C,  devises  to  his 
wife  all  his  wines,  &c.,  in  addition  to  the  settlement  made  her  of  his  copyhold 
estates ;  to  his  niece  M.  the  rents  and  profits  of  his  new  enclosed  freehold  cow- 

Consequa,  Peters'  C.  C.  86.  All  anterior  and  contemporaneous  stipulations  and 
representations  are  merged  in  the  writing  and  cannot  be  given  in  evidence : 
Gooch  v.  Conner,  8  Mo.  391;  Parkhtirst  v.  Corilandt,  1  Johns.  Ch.  274;  Crosier 
v.  Acer,  7  Paige  137  ;  Ellmaker  v.  Franklin  Fire  Ins.  Co.,  5  Barr  183 ;  Bedford 
V.  Flowers,  11  Humph.  242.  Parol  evidence  is  inadmissible  to  explain  the 
intentions  of  a  party  to  a  deed  :  Child  v.  Wells,  13  Pick.  121 ;  Pai/sant  v.  Ware, 
1  Ala.  160  ;  Brockett  v.  Bartholomew,  6  Mete.  396. 


667  PROOFS. 

given  to  A.  B.,  and  in  the  case  of  his  death  to  his  wife,  and  the  wife 
j-^  after  his  death  received  *the  legacy,  and  the  question  at  law 

*-  -^  was,  whether  she  received  the  legacy  in  her  own  right,  or  as 
her  husband's  representative,  it  was  held  that  evidence  was  inadmis- 
sible to  prove  that  the  testator  when  he  was  in  extremis  had  declared 
his  intention  to  be,  that  the  husband  should  have  the  interest  only 
during  the  life  of  the  wife,  and  that  if  she  survived  him  she  should 
have  the  principal."  Where  a  f<ither  by  his  will  made  his  three 
brothers,  who  were  Presbyterians,  together  with  a  clergyman,  guar- 
dians of  his  children  in  general  terms,  King,  Chancellor,  on  a  bill 
filed  by  the  three  against  the  clergyman,  to  have  the  children  delivered 
up  to  them,  rejected  parol  evidence  of  directions  alleged  to  have  been 
given  by  the  testator,  that  the  children  should  be  educated  as  Presby- 
terians ;  and  he  said,  that  as  that  was  not  expressed  in  the  will,  parol 
evidence  was  no  more  admissible  than  in  the  case  of  a  devise  of  land.* 
Oral  declarations  of  the  testator  cannot  be  received  for  the  purpose 
of  explaining  his  intention,®  even  where  it  is  apparently  ambiguous 
on   the  face  of  the  will.     Where  the  testator,  after  mentioning  his 

pasture  close  in  North  C.  during  the  life  of  his  wife ;  and  after  the  decease  of 
his  wife,  to  two  nephews,  his  furniture,  &c.,  and  all  his  copyhold  estates  in 
North  0.  and  South  C.  It  was  held,  that  as  there  was  no  ambiguity  on  the  face 
of  the  will,  or  in  the  application  of  it,  the  testator  having  copyhold  estates  in 
North  C.  and  South  C,  which  answered  the  description,  extrinsic  evidence  was 
not  admissible  to  show  that  the  description  in  the  settlement  included  a  freehold 
close,  which  was  mistakenly  enumerated  there  as  copyhold ;  and  that  by  all  his 
copyhold  estates  in  North  C.  and  South  C.  this  freehold  passed,  although  the 
settlement  was  referred  to  in  the  will ;  and  that  other  documents  not  referred 
to  were  inadmissible  for  that  purpose:  Doe  clem.  Brown  v.  Brown,  11  East  441. 
A  testator  gave  one  of  his  debtors  certain  meissuages,  and  after  other  legacies 
and  devises  gave  all  the  rest  of  his  estate,  not  thereby  devised,  to  his  executors, 
or  such  of  them  as  should  act,  and  made  that  debtor  and  /.  S.  his  executors. 
They  both  acted,  and  J.  S.  filed  a  bill  against  the  debtor  for  a  proportion  of  his 
debt :  the  debtor  offered  parol  evidence  to  show  that  the  testator  meant  that  the 
debt  should  be  extinguished,  and  that  he  gave  the  attorney  who  drew  the  will 
instructions  to  release  it ;  but  that  the  attorney,  and  a  counsel  whose  opinion 
was  taken,  were  of  opinion  that  the  debt  would  be  released  by  implication. 
But  Lord  Talbot  said  that  the  cases  went  no  further  than  to  let  in  parol  evi- 
dence to  rebut  an  equity  or  resulting  trust ;  but  as  the  residuary  clause  directed 
the  property  not  before  disposed  of  by  the  will  to  be  divided  between  the  execu- 
tors, and  as  the  debt  in  question  had  not  been  previously  disposed  of  by  the 
will,  tlie  evidence  contradicted  the  express  words  of  the  will  :  Brown  v.  Selwyn, 
Ca.  temp.  Talbot  240  ;  IJac.  Abr.,  Wills,  D. 

°  Low  field  v.  Stoneham,  Str.  1261. 

"  Storke  V.  Slorke,  3  P.  Wms.  f)! ;  but  see  2  Ves.  589. 

•  2  Vern.  G24 ;  9  CI.  &  F.  566. 


PAROL     EVIDENCE     TO     VARY,     ETC.  668 

wife  and  niece  in  his  will,  afterwards  gave  a  particular  estate  to  her 
for  life,  the  Lord  Chancellor  refused  to  receive  parol  evidence  to  show 
which  was  meant/ 

So,  such  extrinsic  evidence  is  inadmissible  to  alter  the  legal  con- 
struction of  words,  or  to  eifect  a  legal  presumption  ^arising  p^p^Q-. 
from  the  construction.^  Where  a  legacy  was  given  to  A.  B.,  L  -" 
who  was  dead  at  the  time,  it  was  held,  that  evidence  was  not  admis- 
sible to  show  the  intent  of  the  testator  that  the  legacy  should  be 
transmissible.''  Where  a  devise  was  to  the  son  of  the  devisor,  and 
the  heirs  of  his  body,  on  the  condition  that  he,  they,  or  any  of  them, 
should  not  aliene,  discontinue,  &c.  ;  parol  evidence  was  held  to  be 
inadmissible  to  show  the  intention  of  the  devisor,  that  the  condition 
should  extend  to  the  son  and  his  heirs.'  So,  it  was  held  to  be  admis- 
sible to  show  that  the  testator  did  not  intend  to  pass  the  reversion 
and  remainder  in  fee  of  certain  settled  lands,  by  a  devise  of  all  lands, 
tenements,  and  hereditaments  out  of  settlement.*"  An  estate  was 
devised  in  trust  to  receive  the  profits  for  three  years,  and  if  the 
heiress  of  the  devisor  should  marry  Lord  Gr.  within  that  time,  in 
trust  for  her  for  life,  with  remainder  to  her  children  in  strict  settle- 
ment ;  and  if  the  marriage  should  not  happen,  in  trust  for  Lord  F. ; 
the  marriage  did  not  take  place ;  and  it  was  held  that  parol  evidence 
was  inadmissible  of  a  declaration  by  the  testator  that  Lord  (r.'s  re- 
fusal should  not  disinherit  his  heir-at-law.' 

Upon  a  question  of  legal  construction  upon  the  terms  of  a  will, 
whether  the  devisor  gave  an  estate  for  life,  or  an  estate  in  fee.  Lord 
Holt  was  of  opinion  that  the  intention  of  the  devisor  must  be  col- 
lected, not  from  collateral  matters,  but  from  the  will  itself;  but  the 
other  judges  were  against  him,  and  their  opinion  was  confirmed  in  the 
Exchequer  Chamber.™  And  in  some  other  instances  the  r*«7A-| 
*courts  have  taken  into  consideration  the  state  and  circum- 
stances of  the  family,  in  order  to  enable  them  the  better  to  construe 

f  Castleton  v.  Turner,  3  Atk.  257  ;  Hampshire  v.  Peirce,  2  Ves.  sen.  216. 

E  Per  Lord  Thurlow,  2  Bro.  C.  C.  521. 

"  Maybank  v.  Brooks,  1  Bro.  C.  C.  84. 

'  Cheijnei/s  case,  5  Co.  68  ;  2  Bro.  C.  C.  521. 

"  Strode  v.  Falkland,  2  Vern.  621  ;  but  it  is  stated  1  y  Salkeld  that  the  decree 
was  reversed  ;  according  to  Vernon,  it  was  compromised. 

'  Bertie  v.  Falkland,  Salk.  231 ;  2  Vern.  333. 

""  Cole  V.  Raiolinson,  Salk.  234  ;  see  Doe  v.  Fyldes,  Cowp.  833  ;  Doe  v.  Dring, 
2  M.  &  S.  455 ;  Bootle  v.  Blundell,  1  Mer.  193 ;  Goodtitle  dem.  Richardson  v. 
Edmonds,  7  T.  R.  640;  Standen  v.  Standen,  2  Ves.  jun.  593;  Vin.  Ab.,  tit. 
Devise,  Y.  2,  pi.  10;  Pepper  d:  Ux.  v.  Winyeve,  Bac.  Ab.,  tit.  Wills,  II. 


670  PROOFS. 

the  testator's  real  intention  as  to  tlie  personal  estate."*  Where,  how- 
ever, extrinsic  evidence  is  allowed  to  operate  so  far  as  to  give  t^o  the 
terms  of  a  will  a  different  construction  from  that  which  the  terms 
abstractedly  imply,  the  rule  has  often  been  considered  to  be  carried 
further  than  is  warranted  by  principle  or  analogy."  Where  evidence 
r*fi7n  ^^^  offered  of  the  value  *of  an  estate  charged  with  the 
sums  of  money  payable  to  the  sisters  of  the  devisee,  as  an 
argument  in  favor  of  a  particular  construction,  the  Court  of  King's 
Bench  held  that  it  was  nugatory  and  inadmissible  as  a  matter  of 
proof,  although  it  might  have  been  of  great  weight  had  the  court 
been  called  upon  to   make  a  will   for   the  testator. ^     In   the  case  of 

°  See  the  cases  cited  in  the  preceding  note ;  and  see  Baldwin  v.  Karver, 
Cowp.  312,  -where  Lord  Mansfield  observed  that  all  cases  upon  the  construction 
of  ■wills  depend  upon  the  particular  penning  of  the  wills  themselves^  and  the 
state  of  the  families  to  vphich  they  relate  ;  and,  in  the  case  of  Jones  v.  Morgan, 
cited  in  Li/tfon  v.  Li/tton,  4  Bro.  C.  C.  441,  the  same  learned  judge  observed, 
that  to  construe  a  will,  the  intent  is  to  be  taken  from  the  whole  will  together, 
applied  to  the  subject  matter  to  which  the  will  relates.  Sir  D.  Evans,  2  Poth. 
212,  remarks,  also,  that  Lord  Loughborough,  in  quoting  the  opinion  of  Lord 
Mansfield,  took  notice  of  different  cases  in  which  certain  words  were  held  to 
apply  to  a  failure  of  issue  at  a  certain  period,  although  taking  the  words  strictly, 
and  construing  them  without  considering  the  circumstances,  would  have  imported 
a  general  failure  of  issue :  vide  Lyttoa  v.  Lytton,  4  Bro.  C.  C.  44L  In  the  case 
of  Masters  v.  Masters,  1  P.  W.  420,  the  testator,  after  bequeathing  a  legacy  to 
two  particular  hospitals  in  Canterbury,  by  his  codicil  bequeathed  another  sum 
"  to  all  and  evert/  the  hospitals.''^  As  the  testator  had  by  his  will  taken  notice  of 
two  hospitals  in  Canterbury,  and  as  it  appeared  in  evidence  that  he  lived  there, 
it  was  held  that  the  intention  sufficiently  appeared  to  apply  the  latter  bequest 
to  the  hospitals  in  Canterbury.  And  see  the  distinction  taken  by  Lord  Thurlow 
in  Jeacock  v.  Falkener,  1  Bro.  C.  C.  296  ;  see  Doe  dem.  Gord  v.  Needs,  2  M.  & 
AV.  129. 

°  See  Lord  Hardwicke's  observations  in  Blinkho7-nev.  Feast,  2  Ves.  28;  Strode 
V.  Russell,  2  Vern.  624 ;  Castleton  v.  Turner,  3  Atk.  258 ;  Petit  v.  Smith,  1  P. 
Wms.  9;  Broion  v.  Lanyley,  2  Barn.  118  ;  Brown  v.  Selwin,  C.  temp.  Talbot, 
240 ;  Jeacock  v.  Falkener,  1  Bro.  C.  C.  296.  The  doctrine  once  prevailed  that  a 
court  might  receive  evidence  which  was  inadmissible  before  a  jury  ;  that,  how- 
ever, has  since  been  denied  :  per  Buller,  J.,  2  IL  B.  524. 

P  Doe  V.  Fyldes,  Cowp.  833.  In  Gates  d.  Wiyfall  v.  Brydon,  3  Burr.  1895, 
Lord  Mansfield  went  into  an  inquiry  as  to  value,  in  order  to  found  an  argument 
upon  the  result,  as  to  the  construction  of  a  will,  and  in  order  to  show  that 
property  of  such  small  value  could  not  be  intended  to  be  the  subject  of  particu- 
lar limitations;  but  the  learned  judge  seems  to  have  been  of  a  different  opinion 
in  the  c.ise  of  Doe  v.  Fyldes,  just  cited,  where  he  concurred  with  the  other 
judges;  and  in  Goodtitle  d.  Richardson  v.  Edmonds,  7  T.  R.  640,  Lord  Kenyon 
intimated  that  the  case  of  Gates  d.  Wig/all  v.  Brydon  had  not  been  satisfactory 
to  the  profession,  and  that  he  believed   that  Lord   Mnnsfield  had  afterwards 


PAROL     EVIDENCE    ADMISSIBLE    TO     DISPROVE.        671 

Doe  d.  Oxenden,  Sir  A.  CJdcester,'^  it  was  observed  by  Sir  V.  Gibbs, 
that  courts  of  law  had  been  jealous  of  extrinsic  evidence  for  the 
purpose  of  explaining  the  intention  of  a  testator ;  and  he  knew  of 
one  case  only  in  which  it  is  permitted,  that  is,  Avhere  an  ambiguity  is 
introduced  by  extrinsic  circumstances. 

The  objection  does  not  apply  where  evidence  is  offered,  not  for 
the  purpose  of  contradict inc/  or  varying  the  effect  of  a  written  instru- 
ment of  admitted  authority,  but  where  on  the  contrary  it  is  offered 
in  order  to  disprove  the  legal  existence,  or  rebut  the  operation  of  the 
instrument.  To  do  this,  is  not  to  substitute  mere  oral  testimony 
for  written  evidence,  the  weaker  for  the  stronger,  but  to  show  that 
the  written  ouo;ht  to  have  no  operation  whatsoever ;  an 
*object  which  must  usually  be  accomplished  by  oral  evi-  ■-  ~^ 
dence. 

As  a  written  instrument  in  general  derives  its  authenticity  from 
the  aid  of  external  evidence,  it  may  be  defeated  in  like  manner. 
Thus,  it  may  be  impeached  by  intrinsic  evidence,  on  the  ground  of 
fraud,  even  in  the  case  of  a  record.''  So,  also,  in  the  case  of  a  pri- 
vate agreement,  oral  evidence  is  admissible  to  prove  a  fraudulent 
omission.'  Where  there  was  an  agreement  for  a  lease,  evidence  was 
admitted  of  a  parol  agreement  that  the  rent  should  be  clear  of  all 
taxes,  but  that  the  plaintiff  reduced  the  agreement  to  writing  with- 
out mentioning  that  point,  and  that  the  defendant  could  not  read.t 
In  order  to  impeach  a  will,  and  to  show  that  it  had  been  fraudulently 
submitted  to  a  testator  for  his  signature,  parol  evidence  was  admitted, 
that  at  the  time  of  signing  the  will  he  asked  whether  the  contents 
were  the  same  with  those  of  a  former  will,  and  that  he  was  answered 
in  the  affirmative."  So,  it  may  be  shown  that  one  will  was  substituted 
for  anotlier."     So,  in  general,  it  may  be  shown  that  fraud  and  impo- 

doubted  whether  he  had  proceeded  upon  substantial  grounds.  In  the  case  of 
Bengough  v.  Walker,  15  Ves.  514,  the  Master  of  the  Rolls  said,  "  You  cannot 
refer  to  extrinsic  evidence  to  construe  a  will,  but  you  may  to  show  with  reference 
to  what  a  will  was  made." 

1  4  Dow.  65 ;  infra,  p.  693. 

«■  Bincr.  N.  P.  172:  Paztou  v.  Pnphanu  9  East  421  ;  Due  v.  Allen,  8  T.  R.  147 ; 
R.  v.  Mattingleg,  2  T.  R.  12  ;  Wright  v.  Crookes,  1  Sc,  X.  S.  685.  But  such 
evidence  is  not  admissible  to  defeat  a  record  by  showing  a  rasure,  &c.  ;  as  that  a 
rasure  was  made  in  a  precept  since  it  was  issued  :  Dickson  v.  Fisher,  Burr.  2267  ; 
and  see  tits.  Fraud  and  Judgment. 

"  Lord  Irnham  v.  Child,  1  Bro.  C.  C.  92;  3  Atk.  2,^S,  post. 

'  Joynes  v.  Statham,  3  Atk.  388.     Note — the  agreement  was  executory. 

"  Doe  d.  Small  v.  Allen,  8  T.  R.  147.  ^  Ibid. 


672  PROOFS. 

sition  were  practised  upon  a  party  to  an  instrument,  by  a  fraudulent 
omission,  or  misrepresentation  of  the  contents,  especially  if  the  party 
were  illiterate/^ 

*And  it  is  a  general  principle  of  law,  that  where  a  statute 

r*6731  . 

■-         -^    makes  a  deed  void,  as  for  a  charitable  or  superstitious  use, 

or  where  it  is  void  at  common  law,  as  being  contra  bonos  mores,  the 

proof  of  invalidity  may  be   collected  not  only  from   the  instrument 

itself,  but  from  circumstances  which,  though  they  do  not  appear  on 

the  face  of  the  deed,  may  be   taken  into  consideration/     Again,   in 

the  case  of  all  covenants  to  stand  seized  to  uses,  a  party  is  at  liberty 

to  prove  other  considerations  than  those  mentioned  in  the  deed.*     In 

the  case  of  Filmer  v.  Grott,^  where   the  ct»nsiderations  mentioned   in 

the  deed  were  ,£10,000,  and  natural  love  and   affection,    the   Lords 

Commissioners  of  the  Great  Seal   directed   an   issue   to  try  whether 

natural  love  and  affection  formed  any  part  of  the  consideration,  the 

estates  being  worth  =£30,000.     On  appeal  to  the  House  of  Lords,  it 

was  held  that  the  commissioners  had  done  right ;  and  the  jury  finding 

that  natural  love  and  affection  formed  no  part  of  the  consideration, 

the  deed  was  afterwards  set  aside  by  the  Lord  Chancellor. 

But,  although  a  party,  in  order  to  prove  fraud,  may  adduce  extrinsic 

evidence  to  show^  the  inadequacy  of  the  consideration  when  compared 

y  3  Atk.  388,  supra.  As  where  a  mortf^agee  draws  the  mortgage-deed  and 
omits  the  covenant  for  redemption.  So,  where  there  were  to  be  two  mortgage- 
deeds,  an  absolute  one  and  a  defeasance,  it  was  held  that  the  mortgagor  might 
prove  an  agreement  to  execute  the  latter  :  Ibid. 

^  Per  Holroyd,  J.,  in  Doe  d.  Wellardy.  Hawiliorn,  2  B.  &  Aid.  96.  And  there- 
fore a  lease  to  trustees  may  be.  avoided  by  a  subsequent  declaration  of  trust  by 
some  of  the  trustees  :  2  B.  &  Aid.  96  ;  and  see  Doe  v.  Munro,  12  M.  &  W.  845 ; 
and  as  to  superstitious  uses,  Cary  v.  Abbott,  7  Ves.  490. 

'  Per  Lord  Kenyon,  R.  v.  Scammonden,  3  T.  R.  475. 

"  Cited  by  Lord  Kenyon,  3  T.  R.  474 ;  4  Bro.  P.  C.  230. 

'  In  cases  of  fraud  :  Stark,  v.  Littlepage,  4  Rand.  368  ;  Paysant  v.  Ware,  1  Ala. 
160;  Bottomly  V.  United  States,  1  Story  135;  Prentiss  v.  Buss,  4  Shep.  30 ; 
Sanford  v.  Handy,  23  Wend.  260;  Buck  v.  Appleton,  2  Shep.  284;  Hol- 
brook  V.  Burt,  22  Pick.  546  ;  Bank  v.  Whinjield,  24  Wend.  419 ;  Singery  v.  At- 
torney-General, 2  Har.  &  Johns.  487  ;  Stannard  v.  McCarty,  1  Morris  124  ;  Jar- 
vis  v.  Palmer,  1 1  Paige  650  ;  Renshaw  v.  Gans,  7  Barr  117  ;  Lowi-y  v.  McMillan, 
8  Barr  157  ;  Miller  v.  Gotten,  5  Ga.  341  ;  Lunday  v.  Thomas,  26  Ga.  537  ;  Pierce 
V.  Wilson,  34  Ala.  596  ;  Bowman  v.  Torr,  3  Clarke  571  ;  Williams  v.  Donaldson, 
8  Ibid.  109  ;  Ojjicer  v.  Howe,  32  Iowa  142  ;  Monroe  v.  Bchrens,  17  P.  F.  Smith 
459;  Coonv.  Atwell,A^  N.  II.  510;  Plant  v.  Gondii, 'I'l  Ark.  454  ;  George  \. 
Norris,  23  Ibid.  121  ;  Wiltenberger  v.  Morrison,  39  Mo.  71 ;  Westbrooks  v.  Jef- 
fers,  33  Tex.  86. 


PAROL     EVIDENCE    TO     CORRECT     MISTAKE,     ETC.       673 

with  the  value  of  the  estate,  the  party  who  claims  under  the  deed 
cannot,  it  has  been  said,  be  admitted  to  show  a  consideration  in  sup- 
port of  it,  different  from  that  which  is  expressed.  Upon  a  bill  to  set 
aside  a  conveyance  of  an  estate  of  inheritance  worth  X40  a  year, 
conveyed  to  the  defendant  by  an  infirm  old  man  of  the  ago  of  seventy- 
two,  in  consideration  of  an  annuity  of  ,£20,  it  was  held,  that  the  de- 
fendant was  not  at  liberty  to  show  blood  and  kindred  to 
have  been  the  real  consideration  of  the  conveyance,  *and  to  •-  -• 
prove  that  the  grantor  had  often  declared  that  he  had  rather  that  his 
kinsman  (one  of  the  defendants)  should  have  the  estate  for  this  an- 
nuity than  any  other  person  for  a  valuable  consideration." 

In  cases  also  where  the  public  have  an  interest  in  the  real  nature 
of  a  transaction  between  two  parties,  they  are  not  bound  by  the 
representation  made  in  the  private  agreement,  but  may  impeach  it 
pro  tanto,  as  to  any  misrepresentation  ;  for  this  misrepresentation 
may  properly  be  considered  as  a  species  of  fraud  upon  the  public. 
Thus,  although  the  private  deed  of  conveyance  of  an  estate  expressed 
<£28  to  be  the  purchase-money,  it  was  held,  that  as  between  two  con- 
tending parishes,  it  was  competent  to  one  of  them  to  show  that  the 
real  consideration  was  X30,  in  order  to  establish  a  settlement  under 
the  statute.*^  And,  in  general,  extrinsic  evidence  is  admissible  for 
the  purpose  of  avoiding  a  particular  instrument,  on  the  ground  of  a 
fraud  attempted  to  be  practised  on  the  revenue ;  as  by  proof  that 
under  the  particular  circumstances  the  instrument  ought  to  have  been, 
differently  stamped.** 

Parol  evidence  is  also,  in  general,  admissible  for  the  purpose  of 
showing  that  an  instrument  is  void  on  the  ground  of  some  illegality 
committed  by  the  parties  ;  as  that  it  is  void  for  usury,  or 
because  it  is  given  to  secure  a  gaming  *debt,  or  founded  upon    ^         J 

"  Clarkson  v.  Hanway  and  others^  2  P.  W.  203.  But  this  case  seems  to  be  of 
doubtful  authority,  and  it  is  quite  clear  that  the  party  claiming  under  a  deed  is 
not  precluded  from  showino;  an  additional  or  further  consideration  not  contra- 
dictory to  that  expressed,  in  order  to  support  it :  Clifford  v.  Turrell,  1  Y.  &  C,  N. 
C.  138  ;  or  in  order  to  rebut  fraud:  Gale  v.  Williamson,  8  M.  &  W.  405  ;  Pott  v. 
Todhunter,  2  Col.  C.  C.  76. 

**  B.  V.  Scammonden,  3  T.  R.  473 ;  see  also  R.  v.  Laindon,  8  T.  R.  379 ;  R.  v. 
Northwingfield,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  912;  and  it  would  seem  that  third 
persons,  if  strangers,  might  do  this :  R.  v.  Cheadle,  3  B.  &  Ad.  (23  E.  C.  L.  R.) ; 
and  see  R.  v.  Mattinglei/,  2  T.  R.  12 ;  Reg.  v.  Stoke,  5  Q.  B  (48  E.  C.  L.  R.)  303. 

«  Snaith  v.  Miiigaij,  1  M.  &  S.  87  ;  Steadman  v.  Duhamel,  1  C.  B.  (50  E.  C.  L. 
R.)  888  ;  and  on  the  other  hand  to  show  that  it  did  not  require  a  stamp  :  R.  v. 
Llangunnor,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  616;  and  post,  tit.  Stamp. 
40 


675  PROOFS. 

some  illefral  consideration/  And  where  a  statute  avoids  an  instru- 
ment  which  does  not  fully  state  the  consideration  on  which  it  is 
founded,  extrinsic  evidence  is  admissible  to  show  that  the  directions 
of  the  statute  have  not  been  complied  with. 

Oral  evidence  is  also  admissible  for  the  purpose  of  correcting  a 
mistake  f  a  practice  more  frequent  in  courts  of  equity  than  of  com- 
mon law.*"'  In  such  cases,  especially  where  recourse  is  had  to  equity 
for  relief,  the  extrinsic  evidence  is  not  offered  to  contradict  a  valid 
existing  instrument ;  but  to  show,  that  from  accident  or  negligence 
the  instrument  in  question  has  never  been  constituted  the  actual  de- 
pository of  the  intention  and  meaning  of  the  parties.  Thus,  where 
parties  covenanted  to  convey  an  estate  in  trust,  to  raise  £30,000  to 
pay  off  debts  and  encumbrances,  with  remainder  over,  parol  evidence 
was  admitted  to  show  that  it  was  the  concurrent  intention  of  all  the 
parties  to  raise  that  sum  in  addition  to  the  sum  of  £24,000,  with 
which  the  estate  was  encumbered.' 

''  An  agreement,  varying  from  the  condition  of  the  bond,  may  be  pleaded,  to 
show  that  the  bond  was  founded  on  an  illegal  agreement :    Greville  v.  Atkins,  9 

B.  &C.  (17  E.  C.  L.  R.)  462  ;  Paxton  v.  Popham,  9  East  421.  So  that  it  has  been 
obtained  by  duress ;  see  the  notes  to  Collins  v.  Blantern,  1  Smith's  L.  C.  153  ; 
2  Wils.  341  ;  and  tit.  Bills,  pos^. 

«  A  contract,  apparently  usurious,  may  be  shown  to  be  legal  by  evidence  of  a 
clerical  error:  Anon  ,  1  Freem.  253  ;  Boothe  v.  Cooke,  Ibid.  264. 

**  The  usual,  and  certainly  the  safer  course,  in  case  of  mistake,  is  to  apply  to 
equity  for  relief,  in  the  first  instance  :  but  parties  are  not  obliged  in  every  case 
to  do  so :  see  R.  v.  Wickham,  2  A.  &  E.  (29  E.  C.  L.  R.)  519.  But  if  a  mistake 
has  been  made  in  a  material  part,  recourse  must  be  had  to  equity  to  reform  the 
instrument;  a  court  of  law  can  only  gii^e  effect  to  it  as  it  stands:  see  Saunderson 
v.  Piper,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  425  ;  Hitchin  v.  Groom,  5  C.  B.  (.57  E. 

C.  L.  R.)  515. 

'  Shellmrne  v.  Inchiqnin,  1  Bro.  C.  C.  338.  The  evidence,  however,  proved  to 
be  insufficient,  and  no  more  than  £30,000  was  ordered  to  be  raised.     The  decree 

'  That  mistake  cannot  be  shown  at  law :  Fitzhugh  v.  Runyon,  8  Johns.  375 ; 
Bradley  v.  Anderson,  5  Vt.  152  ;  Morton  v.  Chandler,  7  Greenl.  44;  Lincoln  v. 
Avery,  1  Fairf.  418  ;  Coleman  v.  Crumpler,  2  Dev.  508.  But  in  equity  or  where 
equitable  principles  are  permitted  in  courts  of  law  it  is  otherwise:  Christ  v. 
Diffenhach,  1  S.  &  R.  464;  Goioer  v.  Sterner,  2  Whart.  75;  Hunt  v.  Rousmanier, 
8  Wheat.  174  ;  McMahon  v.  Spangler,  4  Rand.  51  ;  Keisselbrock  v.  Livingston,  4 
Johns.  Ch.  144  ;  Coger  v.  McGee,  2  Bibb  321 ;  Ward  v.  Allen,  28  Ga.  74  ;  Hamil- 
ton v.  Congers,  Ibid.  276  ;  Stockham  v.  Stockham,  32  Md.  196 ;  Buck  v.  Tilley, 
49  Barb.  599;  Richardso)i  v.  Boynton,  12  Allen  138  ;  Baltimore  Steamboat  Co. 
V.  Brown,  4  P.  F.  Smith  77 ;  Fisher  v.  Deihert's  Adm.,  Ibid.  460.  In  the 
absence  of  fraud  or  mistake  of  fact  parol  evidence  is  not  admissible  to  contra- 
dict or  vary  the  terms  of  a  written  contract,  though  made  under  mistake  of 
law  :  Potter  v.  Sewall,  54  Me.  142. 


PAROL  EVIDENCE  TO  CORRECT  MISTAKE,  ETC.   676 

*In   cases   also    of  maniao;e   settlements,  where   mistakes   ^   ^_^, 

r  6761 
have  been  committed,  and,  in  consequence,  the  deeds  have    *-         -• 

varied  from  the  instructions  of  the  parties,  they  have  been  rectified 

by  a  court  of  equity.''     The  same  has  also  been  done  in  instances  of 

mercantile  and  other  contracts.^     Where  two  persotis  intrust  a  third 

to  draw  up  minutes  of  their  intention,  a  mistake  of  his  may,  it  has 

been  held,  be  relieved  against."     Cases  of  this  nature  are  nearly  of 

kin   to  those   of  fraud  ;   it  is,  in   point  of  conscience  and  equity,  an 

actual  fraud  to  claim  an  undue  benefit  and  advantage  from  a  mere 

mistake,  contrary  to  the  real  intention  of  contracting  parties.   ^\LJiere 

a  party  at  the  time  of  executing  a  deed  pointed  out  a  mistake,  which 

the  other  agreed  to  rectify,  but  afterwards  refused  to  do  so,  pai-ol 

evidence  of  the  fact  was   held   to   be   admissible   in   equity,   on   the 

ground  of  fraud." 

Such  evidence  ought  not,  for  obvious  reasons,  to  be  allowed  to 
prevail,  unless  it  amount  to  the  strongest  possible  proof. °  The  most 
satisfactory  evidence  for  this  purpose  consists  of  the  written  materials 
and  instructions  *which  were  intended  by  the  parties  to  be  r*p77-| 
the  basis  and  ground-plan  for  the  construction  of  the  intended 
instrument.^ 

Where  a  mistake  is  alleged  to  have  been  made  in  a  settlement  by 

was  afiBrmed  in  the  House  of  Lords  :  see  also  Baker  v.  Paine,  1  Ves.  457  ;  Towers 
V.  Moore,  2  Vern.  98  ;  and  further  in  what  cases  equity  will  relieve :  London  <fc 
Birmingham  Railway  Company  v.  Winter,  Cr.  &  P.  57  ;  Okill  v.  Whittaker,  2 
Phil.  338. 

''  Barstow  v.  Kilvington,  9  Ves.  59  ;  Randal  v.  Randal,  2  P.  W.  464 ;  Marquis 
of  Exeter  v.  Marchioness  of  Exeter,  3  M.  &  Cr.  321  ;  Walsh  v.  Trevannion,  16 
Sim.  178. 

'  See  Henkle  v.  Royal  Exchange  Assurance  Comp.,  1  Ves.  317;  Thomas  v. 
Frazier,  3  Ves.  jun.  399  ;  10  Ves.  227 ;  and  see  Motteaux  v.  London  Assurance 
Company,  1  Atk.  545 ;  Baker  v.  Paine,  1  Ves.  456. 

">  1  Bro.  C.  C.  350. 

"  Per  Lord  Thurlow,  1  Bro.  C.  C.  54 ;  Pitcairn  v.  Ogbourne,  2  Ves.  375. 

"  Per  Lord  Hardwicke,  in  1  Ves.  318,  supra.  In  that  case,  upon  a  bill  to 
rectify  a  mistake  in  a  policy  of  insurance,  the  principal  evidence  consisting  in 
the  deposition  of  an  agent  of  the  company,  who  had  transacted  business  for 
them,  the  court  held  that  it  was  sufficiently  certain  to  be  relied  on.  The  Lord 
Chancellor  observed,  that  the  Court  of  Chancery  had  jurisdiction  to  relieve 
against  plain  mistakes  in  contracts  in  writing,  as  well  as  against  fraud ;  so  that 
if  reduced  into  writing,  contrary  to  the  intention  of  the  parties,  that,  on  proper 
proof,  would  be  rectified.  Lord  Eldon,  has  observed  on  the  looseness  of  this 
expression,  as  it  left  it  to  every  judge  to  say,  ''whether  the  proof  was  that 
proper  2yroof  wYnch.  ought  to  satisfy  him." 

P  Baker  v.  Paine,  1  Ves.  457. 


677  PROOFS. 

an  attorney's  clerk,  the  court  would  not  allow  it  to  be  corrected  by 
the  mere  testimony  of  the  attorney  himself,  who  had  received  oral 
instructions  for  the  preparation  of  the  deeds ;  nothing  appearing  in 
the  handwriting  of  the  parties  to  show  that  a  mistake  had  been  com- 
mitted.*! 

In  general,  where  a  written  document  is  given  in  evidence  as  con- 
taining an  admission  by  the  adversary,  parol  evidence  is  admissible 
to  explain  it,  or  to  show  that  it  originated  in  mistake.' 

The  principle  on  which  evidence  is  received,  to  explain  mistakes  in 
matters  of  contract  between  private  persons,  does  not  extend  to  the 
admission  of  evidence  to  show  that  a  mistake  or  alteration  has  been 
made  in  records  ;  those  memorials  having  been  made  and  kept  under 
the  immediate  authority  of  the  law,  and  by  officers  in  whom  confi- 
r*r7S1  ^6^^CG  's  fo^  ^^^^  purpose  reposed,  it  is  to  be  concluded  that  they 
have  been  correctly  made,  and  faithfully  preserved.*  *But 
such  evidence  is  admissible  to  show  a  mistake  in  a  memorial  not 
of  record ;  as  a  court-roll.' 

Such  extrinsic  evidence  is  also  admissible  for  the  purpose  of  prov- 
ing fraud.  Thus,  although  a  buyer  of  goods  under  a  written  contract 
cannot  show  a  previous  parol  contract  for  the  purpose  of  varying  the 
terms  of  the  written  one,  he  may  show  by  extrinsic  evidence  that  the 

■i  Hardwood  v.  Wallace,  cited  2  Ves.  195.  Hence,  it  seems  that  the  court,  in 
such  cases,  will  not  rely  on  mere  parol  evidence  alone  •,  and  see  the  dictum  of 
Sir  Thomas  Clarke  to  that  effect,  1  Dickenson  295 ;  and  see  Shergold  v.  Boone, 
13  Ves.  373,  376. 

■■  Holsten  v.  Jumpson,  4  Esp.  C.  139  ;  and  see  per  Buller,  J.,  in  Haheath  v.  Hal- 
dimand,  1  T.  R.  182 ;  and  see  CoUett  v.  Lord  Keith,  4  Esp.  212  ;  Graves  v.  Key, 
3  B.  &  Ad.  (23  E.  C.  L.  R.)  318. 

°  Reed  v.  Jackson,  1  East  855.  In  Lord  Carnarvon  v.  Villebois,  13  M.  W.  213, 
a  judgment  in  a  quo  warranto,  charging  a  usurpation  of  free  warren  over  the 
lands  of  tenants,  as  well  as  over  the  demesne  lands  of  a  manor,  upon  which, 
the  defendant  having  set  forth  a  title  to  the  franchise  over  the  demesne  lands 
only,  the  Attorney-General  had  confessed  the  judgment  with  respect  to  the  title 
as  set  forth  by  the  tenant,  was  held  evidence  of  the  title  to  both  as  set  forth  in 
the  information,  and  the  court  considered  the  omission  in  the  plea  and  judg- 
ment as  accidental,  and  a  mistake.  Amendments  in  records  are  frequently 
made  by  the  courts  themselves,  on  proper  application. 

*  Burgess's  case,  1  Leon.  289  ;  Kite  v.  Queinton,  4  Co.  25  ;  Towers  v.  Moore,  2 
Vern.  98.  In  Ifall  v.  Wiygett,  2  Vern.  547,  an  entry  in  the  steward's  book,  and 
parol  proof  by  the  foreman  of  the  jury  of  copyholders,  was  admitted  to  show  that 
a  feme  covert  had  surrendered  the  whole  of  her  copyhold  estate,  although  the 
surrender  on  the  roll,  and  admission,  were  ])ut  of  a  moiety;  and  see  Towers  v. 
Moore,  2  Vern.  98;  Walker  v.  TFa/Zier,  Barnard  215;  Scriven  on  Copyholds, 
passim. 


PAROL  EVIDENCE  —  LATENT  AMBIGUITY.       678 

seller,  by  some  fraud,  prevented  him  from  discovering  a  defect  which 
he  knew  to  exist." 

It  is  obvious  that  the  general  exclusive  principle  is  also  inappli- 
cable in  all  cases  where  the  party  admits  that  the  deed  or  other 
instrument  did  once  legally  exist  as  such,  but  offers  extrinsic  proof 
to  show  that  it  has  been  discharged  by  some  subsequent  instrument 
or  agreement,"  or  by  the  receiving  payment  or  satisfaction.^^ 

II.  I71  aid  of  written  evidence. — In  the  next  place,  extrinsic  parol 
evidence  is  admissible  generally  to  give  effect  to  a  written  instrument, 
by  establishing  its  authenticity,  applging  it  to  its  proper  subject- 
matter,  and  also,  as  ancillary  to  the  latter  object,  for  the  purpose,  in 
some  instances  of  explaining  expressions  capable  of  conveying  a 
definite  meaning  by  virtue  of  that  explanation,  and  of  annexing 
customary  incidents;  and  also,  in  other  instances,  *for  the  r:):f?i-Q-i 
purpose  of  removing  presumptions  arising  from  extrinsic 
facts  which  would  otherwise  obstruct  such  application. 

Where  an  instrument  is  not  proved  by  mere  production,  it  must 
necessarily  derive  its  credit  and  authenticity  from  extrinsic  evidence. 

In  the  next  place,  it  is  always  necessarily  a  matter  of  extrinsic 
evidence  to  apply  the  terms  of  an  instrument  to  a  particular  subject- 
matter,  the  existence  of  which  is  also  matter  of  proof.''  A  difiBculty 
in  this  case  occurs,  where,  although  the  terms  of  the  instrument  be 

"  Kain  v.  Old,  2  B.  &  C.  (9  E.  C.  L.  R.)  631 ;  citing  Pickering  v.  Dawson,  4 
Taunt.  779,  where  it  was  so  laid  down  by  Gibbs,  C.  J. ;  and  as  to  fraud,  see 
Cornjoot  v.  Fowke,  6  M.  &  AV.  358  ;  and  the  numerous  cases  as  to  bills,  tit. 
Bills  of  Exchange. 

^  Supra,  tit.  Assumpsit,  Deed  ;  and  supra,  p.  655,  nbte  (c). 

y  See  tit.  Accord  and  Satisfaction. 

'^  In  R.  V.  Wooddale,  6  Q.  B.  (51  E.  C.  L.  R.)  549 ;  where  an  apprentice  was 
described  in  a  deed  by  one  name  and  executed  it  by  another,  extrinsic  evidence 
was  held  admissible  to  show  that  the  person  meant  was  the  person  who  executed 
the  indenture  :  and  see  Williams  v.  Bryant,  5  M.  &  W.  447. 

^  An  agreement  to  extend  the  time  of  payment  provided  for  in  a  written  agree- 
ment, as  a  promissory  note,  may  be  proved  by  parol  evidence  :  Peck  v.  Beckwith, 
10  Ohio  (N.  S.)  497.  Waiver  of  a  condition  in  a  deed  may  be  so  proved  :  Leath 
V.  Bullard,  8  Gray  545.  So  that  a  written  agreement  was  not  to  be  binding 
until  other  signatures  had  been  obtained,  is  admissible :  Butler  v.  Smith,  35 
Miss.  457.  Whenever  the  time  of  the  execution  of  any  writing,  however  ob- 
scure, becomes  material,  it  may  be  proved  by  parol,  not  only  to  supply  an 
omission  but  in  opposition  to  a  date  expressed  :  Draper  v.  Snow,  20  N.  Y.  331  ; 
Partridge  v.  Swazey,  46  Me.  414.  The  time  for  the  performance  of  a  sealed  as 
well  as  a  simple  contract  may  be  enlarged  by  parol:  Branch  v.  Wilson,  12  Fla. 
543. 


G79  PROOFS. 

sufficiently  definite  and  distinct,  the  objects  to  which  it  is  to  be  ap- 
plied are  not  equally  so,  and  where  it  is  doubtful  whether  the  descrip- 
tion applies  at  all  to  the  particular  object  pointed  out  by  the  evidence, 
whether  it  be  not  equally  applicable  to  several  distinct  objects. 

The  general  rule  has  already  been  adverted  to,  that  a  latent  am- 
biguity (that  is,  an  ambiguity  arising  from  extrinsic  evidence)  may  be 
removed  by  extrinsic  evidence. 

The  illustration  most  usually  given  of  the  operation  of  this  rule  is 
that  of  a  description  in  a  will  of  a  devisee,  or  of  an  estate,  where  it 
turns  out  that  there  are  two  persons,  or  two  estates  of  the  same  name 
and  description.  Where  the  testatrix  devised  an  estate  to  her  cousin 
Jolm  Cluer,  and  there  were  two  persons,  father  and  son,  of  that 
name,  evidence  was  admitted  to  show  that  Jolm  Cluer,  the  son,  was 
^  meant.*  So  in  Lord  Cheney's  case,^  it  was  held,  that  *if  a 
L  -^  testator,  having  two  sons  of  the  same  name  of  baptism,  and 
supposing  the  elder,  who  had  long  been  absent,  to  be  dead,  devise 
his  land  to  his  son  generally,  the  younger  son  may  be  permitted  to 
prove  the  intent  of  the  father  to  devise  to  him,  and  to  show  that,  at 
the  time  of  the  devise,  he  thought  that  the  other  son  was  dead,  or 
that  at  the  time  of  making  his  will,  he  named  his  son,  (Tohn  the 
younger,  and  the  writer  left  out  the  addition.  According  to  Lord 
Coke,  no  inconvenience  can  result  if  an  averment  be  taken  in  such 
a  case,  for  he  who  sees  the  will  by  which  the  land  is  devised  cannot 
be  deceived  by  any  secret  averment ;  when  he  sees  the  devise  to  the 
testator's  son  generally,  he  ought,  at  his  peril,  to  inquire  which  son 
the  testator  intended,  which  may  easily  be  known  by  him  who  wrote 
the  will,  and  by  others  who  were  privy  to  the  intent;  and  if  no 
direct  proof  can  be  made  of  his  intent,  then  the  devise  is  void  for 
uncertainty.''  So,  if  a  person  grant  his  manor  of  S.  generally,  and 
it  appear  that  he  has  two  manors  of  S.  (south  S.  and  north  S.),  parol 
evidence  is  admissible  to  show  which  was  intended.*^  Where  the  tes- 
tator gave  £100  to  the  four  children  of  Mrs.  Bamjield,  and  it  ap- 
peared that  she  had  four  children  by  3Ir.  Bamjield,  her  latter  hus- 
band, and  two  children  by  3Ir.  P.  her  first  husband,  a  declaration 
by  the  testator  that  he  had  provided  for  the  four  children  of  Mrs.  B., 

*  Jones  V.  Neivsam,  1  Bl.  GO.  Yet  if  there  be  Hither  and  son  of  the  same  name, 
it  is  usually  to  be  presumed  that  the  father  is  meant  by  the  name  used  simply, 
and  without  the  addition  of  "  the  younger." 

''  Lord  Chcnei/s  case,  5  Co.  Rep.  68,  b. ;  so  also  Careless  v.  Careless,  1  Meri- 
vale  384. 

«  .0  Hep.  .08. 

•^  13ac.  El.  Rule  23  ;  see  Broom's  Maxims,  cap.  vi. 


PAROL     EVIDENCE — LATENT    AMBIGUITY.  680 

but  would  give  nothing  to  P.'s  children,  was  admitted  in  evidence  to 
show  who  were  meant  by  the  description  of  the  four  children  in  the 
will." 

Where  a  testator  devised  a  house  to  John  Gord,  the  son 
*of  George  Gord^  another  to  George  Gord,  the  son  of  George  ^  -• 
Gord,  and  a  third  to  George  Gord,  the  son  of  Gord,  evidence  of  his 
declarations  was  admitted  to  show  that  he  intended  that  the  third 
house  should  go  to  George  Gord,  the  son  of  George  GorJJ  The 
Court  of  Exchequer,  in  giving  judgment  said,  ''If  upon  the  face  of 
the  devise  it  had  been  uncertain  whether  the  devisor  had  selected  a 
particular  object  of  his  bounty,  no  evidence  would  have  been  admis- 
sible to  prove  that  he  intended  a  gift  to  a  certain  individual.  Such 
would  have  been  a  case  of  ambiguitas  pate7i8  within  the  meaning  of 
Lord  Bacon's  rule,  which  ambiguity  could  not  be  hoi  pen  by  aver- 
ment." "But  here,  on  the  face  of  the  devise,  no  such  doubt  arises. 
There  is  no  blank  before  the  name  of  Gord,  the  father,  which  might 
have  occasioned  a  doubt  whether  the  devisor  had  finally  fixed  on  any 
certain  person  in  his  mind ;  the  devisor  has  clearly  selected  a  par- 
ticular individual  as  the  devisee.  Let  us  then  consider  what  would 
have  been  the  case,  if  there  had  been  no  mention  in  the  will  of  any 
other  George  Gord,  the  son  of  a  Gord:  on  that  supposition  there  is 
no  doubt  upon  the  authorities,  but  that  evidence  of  the  devisor's 
intention  as  proved  by  his  declarations  would  have  been  admissible. 
Upon  the  proof  of  extrinsic  facts,  which  is  always  allowed  in  order 
to  enable  the  court  to  place  itself  in  the  situation  of  the  devisor,  and 
to  construe  his  will,  it  would  have  appeared  that  there  were  at  the 
date  of  the  will  two  persons,  to  each  of  whom  the  description  would 
be  equally  applicable.  This  clearly  resembles  the  case  put  by  Lord 
Bacon  of  a  latent  ambiguity,  where  one  grants  his  manor  of  S'.  to  tT. 
T.  and  his  heirs,  and  the  truth  is  that  he  has  the  manors  of  south  8. 
and  north  /SV  In  Doe  dem.  Hiscocks  v.  Hiseoeks,^  Lord  Abinger, 
in  delivering  the  judgment  of  the  Court  of  Exchequer,  explained 
the  law  in  these  words:  "  The  object  in  all  cases  is  to  discover  the 
*intention  of  the  testator.  The  first  and  most  obvious  mode  r*f«of)-i 
of  doing  this  is  to  read  his  will  as  he  has  written  it,  and  col- 

®  Ilampsliire  v.  Peirce,  2  Ves.  216.  The  correctness  of  this  case,  so  far  as  ad- 
mitting the  testator's  declaration,  is  doubted  in  Doe  v.  Hiscocks,  infra,  p.  681  ; 
and  note  that  in  the  same  will,  the  testator  having  subsequently  given  £300  to 
the  children  of  Mrs.  B.,  Sir  John  Strange,  the  Master  of  the  Rolls,  held  that  the 
declaration  was  inadmissible  as  to  the  £300,  being  contradictory  of  the  will. 

'  Doe  dem.  Gord  v.  Needs,  2  M.  &  W.  129. 

e  5  M.  &  W.  363. 


682  PROOFS. 

lect  his  intention  from  his  words.  Bnt  as  his  words  refer  to  facts  and 
circumstances  respecting  his  property  and  his  family,  and  others 
whom  he  names  and  describes  in  his  will,  it  is  evident  that  the  mean- 
ing and  the  application  of  his  words  cannot  be  ascertained  without 
knowledge  of  all  those  facts  and  circumstances.  To  understand  the 
meaning  of  any  writer,  we  must  first  be  apprised  of  the  persons  and 
circumstances  that  are  the  subjects  of  his  allusions  or  statements  ;  and 
if  these  are  not  fully  disclosed  in  his  work,  we  must  look  for  illustra- 
tion to  the  history  of  the  time  in  which  he  Avrote,  and  to  the  Avorks 
of  contemporaneous  authors.  All  the  facts  and  circumstances  there- 
fore respecting  persons  and  property  to  which  the  will  relates  are 
undoubtedly  legitimate,  and  often  necessary  evidence  to  enable  us  to 
understand  the  meaning  and  application  of  the  words.  Again,  the 
testator  may  have  habitually  called  certain  persons  or  things  by  pecu- 
liar names,  by  which  they  were  not  commonly  known.  If  these  names 
should  occur  in  his  will,  they  could  only  be  explained  and  construed 
by  the  aid  of  evidence  to  show  the  sense  in  which  he  used  them,  in 
like  manner  as  if  his  will  were  written  in  cipher  or  in  a  foreign  lan- 
guage. The  habits  of  the  testator  in  these  particulars  must  be  re- 
ceivable as  evidence  to  explain  the  meaning  of  his  will.  But  there  is 
another  mode  of  obtaining  the  intention  of  the  testator,  which  is  by 
evidence  of  his  declarations,  of  the  instructions  given  for  his  will,  and 
other  circumstances  of  the  like  nature,  which  are  not  adduced  for 
explaining  the  meaning  of  the  words  of  the  will,  but  either  to  supply 
some  deficiency,  or  remove  some  obscurity,  or  to  give  some  effect  to 
expressions  that  are  unmeaning  or  ambiguous. 

"  Now,  there  is  but  one  case  in  which  it  appears  to  us  that  this 
sort  of  evidence  of  intention  can  properly  be  admitted,  and  that  is 
r*fi8m  ^^^^^  ^^6  meaning  of  the  testator's  words  is  *neither  ambig- 
uous nor  obscure,  and  where  the  devise  is  on  the  face  of  it 
perfect  and  intelligible,  but  from  some  of  the  circumstances  admitted 
in  proof,  an  ambiguity  arises  as  to  which  of  the  two  or  more  things, 
or  which  of  the  two  or  more  persons,  each  answering  the  words  in 
the  will,  the  testator  intended  to  express.  Thus,  if  a  testator  devises 
his  manor  of  S.  to  A.  B.,  and  has  two  manors  of  north  *S'.  and  south 
&'.,  it  being  clear  he  means  to  devise  one  only,  whereas  both  are 
equally  described  by  the  words  he  has  used,  in  that  case  there  is  what 
Lord  Bacon  calls  an  equivocation,  i.  c,  the  words  equally  apply  to 
either  manor,  and  evidence  of  previous  intention  may  be  received  to 
solve  this  latent  ambiguity,  for  the  intention  shows  what  he  meant  to 
do,  and  when  you  know  that,  you  immediately  perceive  that  he  has 


PAROL    EVIDENCE  —  LATENT    AMBIGUITY.  683 

done  it  by  the  general  words  he  has  used,  which  in  their  ordinary 
sense  may  properly  bear  that  construction.  It  appears  to  us,  that  in 
all  other  cases  parol  evidence  of  what  was  the  testator's  intention 
ought  to  be  excluded  upon  this  plain  ground,  that  his  will  ought  to 
be  made  in  writing;  and  if  his  intention  cannot  be  made  to  appear 
by  the  writing,  explained  by  circumstances,  there  is  no  will." 

The  reasoning  of  this  case  was  fully  acted  upon  by  the  Court  of 
Queen's  Bench  in  Doe  dem.  Allen  v.  Allen,^  where  the  devise  was  to 
Jolm  A.  the  grandson  of  T.  A.,  charged  with  the  payment  of  a  legacy 
to  each  and  every  of  the  brothers  and  sisters  of  the  aforesaid  John. 
At  the  making  of  the  will  there  were  two  persons,  named  John  A., 
grandsons  of  T.  A.,  one  of  whom  had  several  brothers  and  sisters, 
and  the  other,  one  only  of  each.  The  court,  after  determining  that 
the  mention  of  the  brothers  and  sisters  was  no  part  of  the  descrip- 
tion of  the  person,  decided  that  the  devisor's  declarations  were  admis- 
sible to  show  that  John  A.,  who  had  but  one  brother  and  one  sister, 
was  meant.  And  the  same  principle  *has  been  again  applied  r*po4-| 
by  the  Court  of  Common  Pleas  in  a  case'  where  the  testator 
devised  to  his  dear  wife  Caroline.  He  had  gone  through  the  cere- 
mony of  marriage  with  Caroline^  and  lived  with  her  till  his  decease, 
but  at  the  time  of  his  pretended  marriage  had  a  wife,  Mary,  who 
survived  him.  These  facts  were  admitted  to  show  his  intention  that 
Caroline  was  meant.  And  where  lands  were  devised  to  M.  B.  for 
life,  remainder  to  her  three  daughters,  M.,  E.  and  A.,  in  fee  as 
tenants  in  common,  and  M.  B.  had  two  legitimate  daughters  named 
M.  and  ^.,  and  one  illegitimate  named  ^.;  extrinsic  evidence  was 
admitted  to  rebut  ^.'s  claim,  by  showing  that  the  testator  was  igno- 
rant of  her  birth,  and  that  B.  formerly  had  a  legitimate  daughter 
named  E.,  and  who  died  long  before  the  date  of  the  will,  but  of 
whose  death  there  was  no  proof  that  he  was  aware.''  Evidence  of  a 
testator's  declarations  made  before  his  will  was  executed,  that  he 
intended  to  provide  for  A.  P.  in  his  will,  has  very  recently  been  held 
admissible  as  evidence  that  such  a  provision,  appearing  in  an  interli- 
neation in  the  will,  was  made  before  it  was  executed.'     So,  if  a  man 

•■  12  A.  &  E.  (40  E.  C.  L.  R.)  451.  In  this  case  the  declarations  were  made 
subsequently  to  the  will. 

»  Doe  d.  Gaines  v.  Rouse,  5  B.  C.  (57  E.  C.  L.  R.)  422. 

^  Doe  V.  Beynon,  12  A.  &  E.  (40  E.  C.  L.  R.)  431. 

'  Doe  d.  Shallcross  v.  Palmer,  20  L.  J.,  Q.  B.  367.  But  declarations  made 
afterwards  that  he  had  made  such  provision  would  not  have  been  evidence  for 
the  same  purpose  :  Ibid. 


684  PROOFS. 

having  two  manors  of  the  same  name,  levy  a  fine  of  one,  without 
distinguishing  which,  parol  evidence  is  admissible  to  show  which  was 
meant." 

It  thus  appears  that  such  an  ambiguity  may  be  raised  by  parol 
evidence ;"  and  that,  in  the  case  of  a  will,  &c.,  the  declarations  made 
by  the  testator  before,  or  at,  or  after  the  time  of  making  the  will  are 
admissible  in  order  to  explain  an  ambiguity  of  this  nature. 

Where  the  testator  devised  to  his  granddaughter  Mary 
L  J  "^Tliomas  o^  LlecJiloyd,  and  it  appeared  that  he  had  a  grand- 
daughter of  the  name  of  Ellenor  Evans,  at  Llechloyd,  and  a  great 
granddaughter,  Mary  Thomas,  who  lived  elsewhere,  evidence  on 
the  part  of  Ellenor  Evans  was  admitted  to  prove  that,  when  the 
will  was  read  over  to  the  testator,  he  said  that  there  was  a  mistake 
in  the  name  of  the  woman  to  whom  he  intended  to  give  the  house, 
but  that  there  was  no  occasion  to  alter  it,  as  the  place  of  abode  and 
the  parish  would  be  sufficient."  But,  in  the  same  case,  it  w^as  held 
that  evidence  was  properly  rejected  of  declarations  made  by  the 
testator  at  other  times  previous  to  the  making  of  his  will,  of  his  great 
regard  for  the  defendant  Mary  Thomas,  and  of  his  intention  to  give 
the  house  to  her.^ 

As  an  ambiguity  arising  from  too  great  generality  of  description 
may  be  removed  by  oral  evidence,  which  restrains  and  confines,  and 
applies  that  description  to  a  single  object,  although,  on  the  mere 
comparison  of  the  terras  with  several  objects,  they  may  be  equally 
applicable  to  more  than  one ;  so,  it  is  a  rule  that  a  redundant  and 
superfluous  description,  which  is  inapplicable  to  an  object  ivell  ascer- 
tained by  previous  or  subsequent  description,  will  not  prevent  such 
application. 

Thus,  where  property  was  given  to  A.  and  B.,  legitimate  children 

of  C.  D.,  it  was  held  that  A.  and  B.,  the  illegitimate  children  of 

C.  D.,  were  entitled  to  take.'^     So,  if  a  *grant  be  made  to 

'-         -^    William,  Bishop  of  Norwich,  the  name  of  the  bishop  being 

™  Partridge  v.  Strange,  Plow.  85,  b. ;  Meres  v.  Ansell,  3  Wils.  275. 

"  Thomas  clem.  Evans  v.  Thomas,  6  T.  R.  671 ;  1  Bro.  C.  C.  85,  341,  350. 

"  Thomas  dem.  Evans  v.  Thomas,  6  T.  11.  671.  But  this  case  has  been  strongly 
objected  to  in  Doe  v.  Jliscocks,  5  M.  &  W.  371  ;  and  see  Beaumont  v.  Fell,  jjost, 
p.  689. 

P  Ibid.,  by  Lawrence,  J.,  at  the  trial :  the  admission  of  the  evidence  was 
afterwards  approved  of  by  the  court  of  K.  B. ;  and  see  8  Vin.  Ab.  312,  pi.  29  ; 
2  Ves.  216. 

^  Slanden  v.  Slanden,  2  Ves.  jun.  589:  see  2  Pothier,  by  Sir  D.  Evans,  210. 
Where  a  woman  made  a  will  in  favor  of  a  person  whom  she  described  to  be  her 


PAROL  EVIDENCE  TO  EXPLAIN  WRITTEN.      686 

Richard,  the  grant  will  be  good,  the  intention  being  sufficiently  clear 
and  apparent. °  So,  if  a  devise  be  made  to  Jolui,  the  son  of  J.  S., 
and  J.  S.  has  but  one  son,  whose  name  is  James.*' 

Upon  the  same  principles,  if  the  description  in  the  instrument 
apply  partially/  to  each  of  two  persons,  but  to  neither  of  them  entirely, 
so  that  a  doubt  arises  which  was  intended,  oral  evidence  is  admis- 
sible to  remove  it.  For  as  an  erroneous  and  superfluous  description 
will  not  prevent  the  application  of  the  description  which  in  part  is 
certain,  and  as  a  description  equally  applicable  to  two  objects  may 
be  ascertained  and  fixed  by  external  evidence,  it  seems  to  follow,  that 
where  the  description,  although  redundant  and  partially  erroneous, 
is  still  limited  to  two  or  more  objects  to  whom  it  is  equally  applicable, 
then  the  generality  may  be  further  limited  by  means  of  extrinsic  evi- 
dence." 

It  is  observable  that,  in  the  case  of  a  will,  evidence  for  the  pur- 
pose of  giving  effect  to  the  maker's  intention  has  been  more  liberally 
admitted  than  in  the  case  of  any  other  instrument,  and  in  some  in- 
stances to  a  greater  extent  than  is  strictly  warranted  by  any  general 
principle.  It  will  therefore  be  proper,  in  this  place,  briefly  to  refer 
to  the  general  principles  and  rules  which  govern  this  large  f.^Q„-, 
class  *of  cases,  either  in  common  with  others  of  a  similar  "-  -• 
nature,  or  as  peculiar  to  the  class.^ 

First,  then,  evidence  of  the  facts  and  circumstances  in  respect  of 
which  the  terms  of  a  will  are  to  be  applied  is  necessarily  admissi- 
ble for  the  purpose  of  applying  them  in   their  strict  sense  •/  and 

husband,  and  it  appeared  that  he  had  another  wife,  Arden,  Master  of  the  Rolls, 
held  that  the  disposition  was  void  ;  but  this  was  founded  not  on  any  defect  in 
the  description,  but  on  the  principle  that  where  a  legacy  is  given  to  a  person  in 
a  character  which  he  has  falsely  assumed,  and  which  alone  can  be  supposed  to 
be  the  motive  of  the  bounty,  the  law  will  not  permit  him  to  avail  himself  of  it: 
see  Doe  v.  Bouse,  5  C.  B.  (57  E.  C.  L.  R.)  422,  supra,  p.  684.  Where  the 
description  is  true  in  part,  but  not  true  in  every  particular,  parol  evidence  is 
admissible,  provided  there  be  enough  to  justify  the  reception  of  the  evidence  : 
Miller  v.  Travers,  8  Bing.  (21  E.  C.  L.  R.)  244:  see  Careless  v.  Careless,  1 
Meriv.  384. 

^  Evans's  Pothier,  Vol.  II.,  209. 

*  Dowsett  V.  Sweet,  Amb.  175  ;  Bradioin  v.  Harper,  Amb.  374 ;  see  also  Par- 
sons v.  Parsons,  1  Ves.  166 ;  Fonnereau  v.  Poyntz,  1  Bro.  C.  C.  472 ;  and  see 
Doe  v.  Hubbard,  15  Q.  B.  (69  E.  C.  L.  R.)  227 ;  and  further  as  to  parcels,  ^osf, 
p.  691,  et  seq. 

"  See  the  case  of  Thomas  dem.  Evans  v.  Thomas,  6  T.  R.  671,  supra,  p.  684. 

^  See  tit.  Wills. 

y  That  is,  where  such  primary  sense  is  not  limited  or  confined  by  the  rules  of 
legal  construction.     The  great  principle  is  to  give  effect  to  the  testator's  inten- 


687  PROOFS. 

it  is  an  inveterate  rule,  founded  on  plain  and  obvious  principles, 
that  where  the  phrases  and  terms  of  the  instrument  are  legal 
phrases  and  technical  terms,  and  they  are  capable  of  application 
in   their  strict,  that   is,  legal   and  technical,  acceptation,   they   must 

be   applied  in  that    sense,   and   no  other/     But,  secondly, 

C*688"l  .  .  . 

-•    *where  it  appears  from  evidence  of  the  material  facts,  that 

tion  in  the  first  place,  and  within  certain  limits,  by  using  the  words  not  in  their 
technical  sense,  but  in  that  which  was  manifestly  intended  "by  the  testator:  see 
Hoyle  V.  Hamilton,  4  Ves.  437,  and  the  cases  there  cited ;  Hodgson  v.  Ambrose, 
1  Dougl.  341  ;  Doe  v.  Perratt,  4  B.  &  C.  (11  E.  C.  L.  R.)  79;  and  Wigram's 
Examination,  &c.,  p.  14,  &c.  And  where  the  sense  is  not  so  limited  and  confined 
by  the  context,  although  the  terms  are  to  be  applied  in  the  first  instance 
according  to  their  technical  sense  and  acceptation,  yet  where  they  are,  upon 
the  evidence,  incapable  of  such  application,  then,  in  furtherance  of  the  same 
principle  of  efi"ectuating  the  testator's  intention,  they  may,  if  capable  and  within 
certain  limits,  be  applied  in  a  secondary  sense.  Where,  however,  the  sense  in 
which  a  term  is  used  is  determined  by  the  context,  or  by  the  testator's  own 
exposition  of  his  meaning,  the  term  can  no  longer  be  applied  in  evidence  in  a 
popular  sense,  for  this  would  be  to  use  his  words  in  a  sense  different  from  that 
intended  by  the  testator. 

^  The  word  child  may  be  applied  by  evidence  to  an  illegitimate  child,  where 
an  application,  according  to  the  strict  legal  meaning  of  the  word,  is  of  necessity 
excluded  :  but  if  no  such  necessity  exist,  the  word  must  be  used  in  its  strictly 
legal  sense  :  Godfrey  v.  Davis,  6  Ves.  43  ;  Carhvright  v.  Vawdrt/,  5  Ves.  530  ; 
Swain  v.  Kennerley,  1  V.  &  B.  469  ;  Harris  v.  Lloyd,  1  Turn.  &  R.  310  ;  Bagley 
V.  Hollard,  1  Russ.  &  M.  581  ;  and  see  Gill  v.  Shelley,  2  Russ.  &  M.  336  ;  Wig- 
ram's Examination,  &c.,  p.  17,  2d  edit. ;  Miller  v.  Travers,  8  Bing.  (21  E.  C.  L. 
R.)  244;  tit.  Will.  In  the  case  of  a  devise  of  "my  real  estate,"  property  sub- 
ject to  a  power  was  formerly  held  to  pass  if  the  devisor  had  no  real  estate  ;  but 
if  there  were  any  real  estate  on  which  the  words  could  operate,  it  was  other- 
wise :  Napier  v.  Napier,  1  Sim.  28  ;  Leiois  v.  Llewellyn,  1  Turn.  &  R.  104 ;  and 
see  Deym  v.  Roake,  5  B.  &  C.  (11  E.  C.  L.  R.)  720;  s.  c,  Bing.  (19  E.  C.  L.  R.) 
475 ;  Davis  v.  Williams,  1  Ad.  &  E.  (28  E.  C.  L.  R.)  588  ;  Doe  v.  Johnson,  7  M. 
&  G.  (49  E.  C.  L.  R.)  1047 ;  Hughes  v.  Turner,  3  M.  &  K.  666 ;  Sugden  on 
Powers,  c.  vi.  s.  46,  a,  &c.  It  may  be  doubted  whether  this  reason  and  the  con- 
clusion drawn  from  it  now  apply,  since  by  the  Wills  Act,  7  Will.  IV.  &  1  Vict. 
c.  26,  8.  24,  such  a  will  operates,  with  respect  to  the  real  as  well  as  to  the  per- 
sonal property,  as  if  it  had  been  executed  immediately  before  the  death  of  the 
testator.  And  it  has  always  been  held  that  a  power  over  a  personal  estate  will 
not  pass  under  the  words  ''my  personal  estate,"  whether  the  testator  at  the 
time  of  making  the  will  had  any  personal  estate  or  not,  because  the  words  are 
applicable  to  such  personal  estate  as  may  possibly  be  afterwards  acquired : 
Andrews  v.  Emmett,  2  Bro.  C.  C.  297  ;  Nannock  v.  Horton,  7  Ves.  391  ;  Jones  v. 
Tucker,  2  Mer.  533  ;  Wigram's  Examination,  &c.,  3d  ed.  p.  18,  and  the  cases 
tfiere  cited.  In  Druce  v.  D&nison,  6  Ves.  385,  it  was  indeed  held  that,  for  the 
specific  purpose  of  raising  a  case  of  election,  extrinsic  evidence  was  admissible 
to  show  that  the  testator,  by  the  words,  "  my  personal  estate,"  meant  personal 


PAROL    EVIDENCE     TO     EXPLAIN    WRITTEN.  688 

the  terms  of  a  will  are  incapable  of  application  in  their  [-^poQ-, 
*strict  acceptation,  evidence  is  admissible  to  show  that  they  •-  -" 
are  still  capable  of  application  in  a  popular  sense,  in  order  so  to 
apply  them.  In  other  words,  evidence  of  material  extrinsic  facts 
and  circumstances*  is  admissible  simply  in  aid  of  the  construction 
of  a  will.  And,  thirdly,  it  is  a  general  rule  that  not  only  material 
facts,  but  also  declarations  made  by  the  testator,  are  under  certain 
circumstances  admissible,  when  necessary  in  order  to  ascertain  the 
person  or  thing  intended,  that  is,  the  object  of  the  testator's  bounty, 
or  the  subject  of  disposition,  where  the  terms  are  applicable  indif- 
ferently  to   more  than   one  person   or   thing.''     The   authorities   go 

estate  subject  to  a  power.  This  case,  however,  as  is  observed  by  Mr.  Wigram, 
p.  39,  stands  opposed  to  a  strong  current  of  authorities.  In  further  illustration 
of  the  general  rule  above  stated,  the  case  of  Doe  dem.  Richardson  v.  Watson,  4 
B.  &  Ad.  (24  E.  C.  L.  R.)  787  ;  may  be  cited.  The  question  was,  whether  two 
closes  of  land  passed  under  the  word  close,  and  it  was  held  that  they  did  not ; 
and  Parke,  J.,  observed,  "  Generally  speaking,  evidence  may  be  given  to  show 
that  the  testator  used  the  word  close  in  the  sense  which  it  bore  in  the  country 
where  the  property  was  situate,  as  denoting  a  farm,  but  here  such  evidence  was 
not  admissible,  because  it  is  manifest  that  in  this  will  the  testator  used  the  word 
close  in  its  ordinary  sense,  as  denoting  an  enclosure ;  for  the  word  close  occurs 
in  other  parts  of  the  will ;"  see  also  Boys  v.  Williams,  3  Sims.  573  ;  Doe  d, 
Westlake  v.  Westlake,  4  Dow.  P.  C.  65 ;  Doe  v.  Bower,  3  B.  &  AdJ  (23  E.  C.  L. 
R.)  453 ;  Doe  d.  Templeman  v.  Martin,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  771.  Lord 
Bacon,  in  his  comment  on  his  13th  maxim,  Non  accipi  debent  verba  in  demon- 
strationem  falsam  qua;  competunt  in  limitationem  veram,  states  the  rule  thus, 
"If  I  have  some  land  wherein  all  the  demonstrations  are  true,  and  some  wherein 
part  of  them  are  true  and  part  false,  then  shall  they  be  intended  words  of  true 
limitation  to  pass  only  those  lands  wherein  all  those  circumstances  are  true  :" 
see  Doe  v.  Ashley,  10  Q.  B.  (59  E.  C.  L.  R.)  663  ;  Morrell  v.  Fisher,  4  Ex.  591  ; 
Wood  V.  Rowcliffe,  6  Ex.  407  ;  Doe  v.  Hubbard,  15  Q.  B.  (69  E.  C.  L.  R.)  227  ; 
post,  p.  694. 

*  It  seems  to  be  a  general  rule  that  all  facts  relating  to  the  subject  and  object 
of  the  devise,  as  to  the  possession  of  the  testator  or  other  person,  the  mode  of 
acquisition,  local  situation,  and  distribution  of  the  property,  are  admissible  to 
ascertain  the  meaning  of  a  will:  see  the  observations  of  Parke,  J.,  Doe  v.  Mar- 
tin, 4  B.  &  Ad.  (24  E.  C.  L.  R.)  785  ;  Boys  v.  Williams,  2  Russ.  &  M.  689. 

'  See  note  (z)  :  Wilkinson  v.  Adams,  1  V.  &  B.  422 ;  Beachcroft  v.  Beachcroft, 
1  Mad.  436  ;  Bayley  v.  Snelham,  1  Sim.  &  Stu.  78  ;  Woodhouslie  v.  Dalrymple,  2 
Mer.  419  ;  per  Lord  Hardwicke,  in  Goodinge  v.  Goodinge,  1  Ves.  231 ;  Lord  Thur- 
low,  in  Jeacock  v.  Falkener,  1  Bro.  C.  C.  295 ;  Lord  Loughborough,  in  Mackell 
V.  Winter,  3  Ves.  540 ;  Lord  Manners,  in  Croane  v.  Odell,  1  Ball.  &  B.  480  ; 
Colpoys  V.  Colpoys,  1  Jac.  451 ;  Lord  Eldon,  in  Oakden  v.  Clifden,  Lincoln's 
Inn  Hall,  1806 ;  Lane  v.  Lord  Stanhope,  6  T.  R.  345  ;  Gibson  v.  Gell,  2  B.  &  C. 
(9  E.  C.  L.  R.)  680;  Pocock  v.  Bishop  of  Lincoln,  3  B.  &  B.  (7  E.  C.  L.  R.)  27  ; 
Wilder'' s  case,  6  Rep.  16  ;  see  tit.  Will. 


689  PROOFS. 

still  further :  it  has  been  held  that  difficulties  arising  in  the  appli- 
cation of  the  terms  of  a  will  from  defect  in  the  description  of  the 
person  or  thing  intended,  may  be  removed  by  the  aid  of  extrinsic 
evidence,  even  although  no  part  of  the  description  be  perfectly  cor- 
rect. One  of  the  strongest  instances  to  this  effect  is  the  case  of 
Beaumont  v.  Fell.''  A  will  was  made  in  favor  of  Catharine  Earnley., 
and  evidence  was  allowed  to  show  that  Grcrtrude  Yardley  was  the 
person  meant ;   no   such  person  as  Catharine  Earnley  appearing  to 

claim  the  legacy.     Evidence  *was  admitted  to  prove  that  the 
r*6901  .        . 

'-         -^    testator's  voice,  when   he  made  his  will,  was  very  low  and 

scarely  intelligible ;  that  the  testator  usually  called  Gertrude  Yard- 
ley  by  the  name  of  G-atty^  which  the  scrivener  who  made  the  will 
might  easily  mistake  for  Katy ;  and  that  the  testator  referred  the 
scrivener  to  his  wife  for  the  name  of  the  legatee,  and  she  afterwards 
declared  Gertrude  Yardley  was  the  person  intended.  But,  in  the 
case  of  Boe  v.  BiscocJcs,^  before  mentioned,  the  Court  of  Exchequer, 
in  their  elaborate  judgment,  have  considered  this  case  as  consistent 
with  true  principles  only  inasmuch  as  there  was  no  such  person  as 
Catharine  Earnley^  and  as  Gertrude  Yardley  was  usually  addressed 
by  the  testator  by  the  name  of  Gatty. 

Where  the  testator  gave  a  legacy  to  John  and  Benedict,  sons  of 
John  Sweet,  and  John  Stveet  the  father  had  two  sons  only,  viz.,  James 
and  Benedict,  evidence  was  admitted  to  prove  that  the  testator  used 
to  address  James  Sweet  by  the  name  of  '■''  Jachey.'"^  Where  a  legacy 
was  given  in  moieties,  one  to  Ann,  the  daughter  of  Mary  Bradwin, 
the  other  to  the  children  of  Mary  Bradtvin,  another  daughter  of  the 
first-named  Mary  Bradwin,  and  it  appeared  that  when  the  will  was 
made  Ann  Bradwin  was  dead,  having  left  two  children,  but  that 
3Iary  Bradwin  the  daughter  Avas  living,  and  single,  the  Master  of 
the  Rolls  held  that  evidence  was  admissible  to  explain  the  legacy.^ 

The  apparent  impossibility  of  reconciling  upon  principle  the  giving 
effect  to  a  description  inapplicable  to  any  subject,  with  the  undisputed 

•*  2  P,  Wms.  141 ;  see  also  Lord  Thurlow's  dictum  in  Maijhank  v.  Brooks,  1 
Bro.  C.  C.  85 ;  and  see  Bi-own  v.  Langli/,  2  Barn.  118. 

<»  5  M.  &  W.  371,  ante,  p!  681 ;  and  see  Miller  v.  Travers,  8  Bing.  (21  E.  C.  L. 
R.)  244. 

'  Dowsett  V.  Sweet,  Ambl.  175;  and  see  1  Bro.  C.  31,  85;  see  also  Masters  v. 
Masters,  1  P.  W.  421. 

'  Bradwin  v.  Harper,  Ambl.  374.  Devise  to  aS'.  H.,  second  son  of  T.  H.,  when 
in  fact  he  was  the  third  son,  evidence  of  the  state  of  the  testator's  family  and 
other  circumstances  was  admitted  to  show  the  mistake  in  the  name :  Doe  v. 
Iluthwaite,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  032. 


PAROL    EVIDENCE    TO    EXPLAIN    WRITTEN.  690 

law  that  even  in  the  case  of  a  legacy  evidence  is  inadmissible  to  fill 

up   a  blank, ^  seems   *to    induce    the    necessitv    of    at    once 

■  ■  .  "  r*691"l 

placing  the  reception  of  such  evidence  upon  the  footing  of  a    ^  -• 

peremptory  and  arbitrary  exception  to  general  rules  and  principles, 
and  to  exclude  all  attempts  at  reconciliation.  In  the  case  of  a  blank 
the  effect  of  the  evidence  might  simply  be  to  supply  a  name  men- 
tioned by  the  testator:  in  the  case  of  a  total  misdescription,  evidence 
is  necessary  not  simply  to  supply  but  to  substitute  a  description.  It 
seems  to  be  very  questionable  whether  Lord  Bacon's  rule  as  to 
ambiguities,  be  applicable  to  a  case  not  of  a  double  meaning,  but  to 
simple  deficiency  of  description.'' 

In  general,  where  there  is  any  doubt  as  to  the  extent  of  the  sub- 
ject devised  by  will,  or  demised,  or  sold,  it  is  matter  of  extrinsic 
evidence   to   show  what  is  included  under  the  description  as  parcel 

of   it.'      The    question    beinij  ^whether  a  description    in    a 

.  •  .  r*6921 

lease  [inter  alia)  of  a  piece  of  ground,  late  in  the  occupa-    •-        "-^ 

^  In  Beaumont  v.  Fell,  supra,  the  Master  of  the  Rolls,  although  he  admitted 
the  evidence,  said,  "  If  this  had  been  a  grant,  nay,  had  it  been  a  devise  of  land, 
it  had  been  void  by  reason  of  the  mistake  both  of  the  Christian  and  surname ;" 
and  see  Doe  v,  Hiscocks. 

^  See  Wigram's  Examination,  &c.,  179. 

'  Doe  v.  Bnrt,  1  T.  R.  701.  Buller,  .J.,  said,  whether  parcel  or  not  of  the  thing 
demised,  is  always  matter  of  evidence  :  see  Kerslake  v.  White,  2  Starkie  (3  E.  C. 
L.  R.)  508  ;  where  it  was  held,  that  the  demise  of  a  messuage,  with  all  rooms 
and  chambers  thereto  belonging  and  appertaining,  included  all  that  was  occupied 
together  as  the  entire  messuage  at  one  and  the  same  time,  and  that  the  demise  did 
not  include  a  room  which  he  had  once  formed  part  of  the  messuage,  but  which  had 
been  separated  from  it  for  many  years  anterior  to  the  demise  :  Herbert  v.  Reid, 
16  Ves.  481.  In  Doe  d.  Beach  v.  Earl  of  Jersey,  3  B.  &  C.  (10  E.  C.  L.  R.)  870; 
under  a  devis«  by  the  testator  of  all  his  Briton  Ferry  estate,  it  was  held,  that 
accounts  of  deceased  stewards  of  former  owners,  in  which  they  charged  themselves 
with  the  receipt  of  various  sums  of  money  on  account  of  the  owners,  were  admis- 
sible in  evidence  to  show  that  particular  lands  had  gone  by  the  name  of  the 
Briton  Ferry  estate :  see  Goodtitle  v.  Southern,  infra.  So  in  the  case  of  a  writ- 
ten agreement  to  convey  all  those  brickworks  in  the  possession  of  A.  B.,  parol 
evidence  is  admiesible  of  what  passed  at  the  time  of  the  agreement,  to  show  what 
was  intended  to  pass:  Paddock  v,  Fradley,  1  C.  &  J.  90.  Where  a  line  was 
levied  of  twelve  messuages  in  Chelsea,  and  it  appeared  that  the  cognisor  had  more 
than  twelve  messuages  in  Chelsea,  parol  evidence  was  admitted  to  show  which 
were  meant :  Doe  v.  Wilford,  R.  &  M.  (21  E.  C.  L.  R.)  88.  There  being  a  devise 
of  Trogues  Farm,  in  the  occupation  of  M.,  it  may  be  shown  that  M.  was  not 
tenant :  Croodtitle  v.  Southern,  1  M.  &  S.  297  ;  Doe  v.  Gallowaij,  5  B.  &  Ad.  (27 
E.  C.  L.  R.)  43  ;  Jack  v.  M'Intyre,  12  CI.  &  F.  151.  Where  a  deed  granted  all 
the  coal  mines  in  the  lands  in  the  occupation  of  widow  K.  and  son,  and  the  grantor 
had  not  any  lands  in  the  occupation  of  widow  K.  and  son,  and  the  deed  was 


692  PROOFS. 

tion  of  A.  (the  piece  of  ground  being  a  yard,  then  in  the  occupation 
of  A.),  a  cellar  and  certain  wine-vaults  under  it  passed,  evidence 
was  admitted  to  prove,  that  at  the  time  of  the  lease  the  cellar  and 
vaults  were  not  in  the  occupation  of  A.,  but  were  under  lease  to  B., 
another  tenant  of  the  lessor,  and  that  the  defendant  never  claimed 
them  until  the  expiration  of  ^.'s  lease.  But  where  a  subject-matter 
exists,  which  satisfies  the  terms  of  the  will,  and  to  which  they 
are  perfectly  applicable,  there  is  no  latent  ambiguity ;  and  no  evi- 
dence can  be  admitted  for  the  purpose  of  applying  the  terms  to  a 
different  object.''  In  the  case  of  Doe  d.  Sir  A.  Chichester  v.  Oxen- 
den^  the  question  was,  whether  parol  evidence  could  be  admitted  to 
show  that  the  testator,  by  a  devise  of  his  estate  at  Ashton,  intended 
to  devise  all  his  maternal  estate,  consisting  of  two  manors  in  the 
parish  of  Ashton,  and  one  in  the  adjoining  parish ;  the  court,  after 
hearing  *two  arguments,  decided  against  the  evidence.  Sir 
L  '  J  J.  Mansfield,  C.  J.,  in  giving  judgment,  referred  to  the  cases 
of  Beaumont  v.  Fell,^  and  Dowset  v.  Sweet  ;^  and  distiugnished  the 

founded  upon  a  contract  of  sale  to  which  the  grantor's  land  steward  was  the 
subscribing  witness  ;  held  that,  to  explain  the  latent  ambiguity  in  the  deed,  let- 
ters written  by  the  latter  to  the  grantees  respecting  the  sale  of  the  coal  mines,  and 
purporting  to  be  written  by  his  directions,  were  admissible,  without  showing  an 
express  authority  from  the  grantor  to  write  them  :  Beaumont  v.  Field,  1  B.  & 
Aid.  247 ;  but  see  Doe  v.  Webster,  12  A.  &  E.  (40  E.  C.  L.  R.)  442 ;  Williams  v. 
Morgan,  15  Q.  B.  (69  E.  C.  L.  R.)  782. 

■>  Lord  Walpole  v.  Lord  Cholmondeley,  7  T.  R.  138;  Carruthors  v.  Sheddon,  6 
Taunt.  (1  E.  C.  L.  R.)  14  ;  Doe  v.  Ashley,  10  Q.  B.  (59  E.  C.  L.  R.)  663  ;  Mor- 
rell  V.  Fisher,  4  Ex.  591  ;  Wood  v.  Rowcliffe,  6  Ex.  407,  ante,  p.  688,  note  (2). 
So  where  words  have  acquired  a  precise  and  technical  meaning :  lb. ;  per  Lord 
Kenyon,  6  T.  R.  352 ;  Mountain  v.  Blaimire,  4  Russ.  384.  And  although  the 
mere  name  of  a  devisee  in  a  will  be  applicable  to  several,  parol  evidence  of  ap- 
plication is  not  admissible,  if  it  can  be  collected  from  the  will  who  was  intended  : 
Doe  V.  Westlake,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  57. 

"^  3  Taunt.  147  ;  4  Dow.  65. 

'  2  P.  Wms.  140 ;  also  to  Whitbread  v.  May,  2  Bos.  &  Pull.  593,  where  the 
question  was  as  to  the  effect  of  a  codicil,  by  which  the  testator  revoked  a  former 
general  devise  of  all  his  estates,  so  far  as  it  related  to  his  estate  at  Leeshill  in 
the  county  of  Wilts,  and  Ileurne,  and  Buckband  in  the  county  of  Kent.  The 
testator  had  lands  in  Jlearne  and  several  other  parishes,  all  of  which  he  had  pur- 
chased by  one  contract  from  one  person  ;  evidence  was  oflFered  to  show  that  the 
testator  meant  to  revoke  the  devise,  not  only  as  to  the  lands  in  Ilearne,  but  also  as 
to  all  the  lands  purchased  at  the  same  time  ;  the  evidence  was  received  at  the  trial, 
subject  to  the  opinion  of  tlie  Court  of  C.  B.,  which  was  equally  divided  upon  the 
question :  sec  Doe  d.  Brown  v.  Brown,  11  East  441  ;  Doe  v.  Lyford,  4  M.  &  S. 
550. 

"  Amb.  175  ;  supra,  p.  689. 


PAROL     EVIDENCE    TO     EXPLAIN    WRITTEN.  693 

present  case,  on  the  ground  that  in  those  the  will  would  have  had  no 
operation  unless  the  evidence  had  been  received;  whereas  in  the  present 
the  will  would  have  an  effective  ojJeratio?!  to  pass  all  the  estate  within 
the  parish  of  Ashton,  without  the  evidence  proposed ;  that  in  the 
other  cases  the  evidence  was  admitted  to  explain  that  which  otherwise 
would  have  had  no  operation,  and  that  it  was  safer  not  to  go  beyond 
that  line.  The  same  question  was  afterwards  brought  before  the 
House  of  Lords,"  *where  judgment  was  given  corresponding 
with  that  of  the  Court  of  Common  Pleas.  L     *-   J 

And  where  a  testator  "  devised  all  those  two  cottages  or  the  tene- 
ments, the  one  occupied  by  my  son  John  Hidthard,  the  other  occu- 
pied by  my  granddaughter,"  and  the  property  originally  consisted 
of  two  copyhold  cottages,  of  which  part  only  of  one  was  occupied  by 
John  Hubbard,  and  part  only  of  the  other  by  the  granddaughter, 
and  both  of  these  parts  had  been  separated  by  partition  from  the 
rest,  which  was  occupied  by  other  persons  including  the  testator,  and 
both  parts  had  separate  outer  doors,  the  Court  of  Queen's  Bench 
was  divided  whether  the  directions  given  by  the  testator  to  the  person 
who  drew  his  will,  indicating  that  he  spoke  of  his  copyhold  premises 
by  the  description  in  the  will,  were  admissible." 

°  Doe  d.  Oxenden  v.  Sir  A.  Chichester,  4  Dow.  65,  in  an  action  brought  by  the 
devisee  against  the  heir  at  law.  The  question  on  the  admissibility  of  the  evidence 
having  been  referred  to  the  judges,  Sir  V.  Gibbs,  C.  J.  of  C.  P.,  delivered  their 
unanimous  opinion,  that  the  evidence  ought  not  to  be  admitted.  In  delivering 
that  opinion,  he  observed,  "  The  courts  of  law  have  been  jealous  of  extrinsic  evi- 
dence to  explain  the  intention  of  a  testator,  and  I  know  of  only  one  case  in  which 
it  is  permitted  ;  that  is,  where  an  ambiguity  is  introduced  by  extrinsic  circum- 
stances. There,  from  the  necessity  of  the  case,  extrinsic  evidence  is  admitted  to 
explain  the  ambiguity.  For  example,  where  a  testator  devises  his  estate  of  Black- 
acre,  and  has  two  estates  called  Blackacre,  evidence  must  be  admitted  to  show 
which  of  the  Blackacres  is  meant.  So,  if  one  devises  to  his  son  John  Thomas, 
and  he  has  two  sons  of  that  name.  So,  if  one  devises  to  his  nephew  William 
Smith,  and  has  no  nephew  answering  the  description  in  all  respects,  evidence 
must  be  admitted  to  show  which  nephew  the  testator  meant,  by  a  description  not 
strictly  applying  to  any  nephew.  The  ambiguity  there  arises  from  an  extrinsic 
fact  or  circumstance  ;  and  the  admission  of  evidence  to  explain  the  ambiguity  is 
necessary  to  give  effect  to  the  will ;  and  it  is  only  in  such  a  case  that  extrinsic 
evidence  can  be  received.  It  is  of  great  importance  that  the  admission  of  extrinsic 
evidence  should  be  avoided,  where  it  can  be  done,  that  a  purchaser  or  heir  at  law 
may  be  able  to  judge  from  the  instrument  itself  what  lands  are,  or  are  not  to  be 
affected  by  it.  Here  the  devise  is  of  all  the  devisor's  estate  at  Ashton,  for  there 
is  no  difference  between  the  words  'Estate  of  Ashton,'  and  '  Estate  at  Ashton,' 
and  he  has  an  estate  at  Ashton  which  satisfies  the  description."  See  Doe  v. 
Morgan,  1  C.  &  M.  235. 

»  Doe  V.  Hubbard,  15  Q.  B.  (69  E.  C.  L.  R.)  227. 
41 


604  PROOFS. 

But  neither  a  new  subject-matter  of  devise,  nor  a  new  devisee, 
where  the  will  is  silent  upon  either,  can  be  imported  bj  parol  evi- 
dence into  a  will.  Thus  in  Miller  v.  Travers,^  where  a  testator 
devised  all  his  real  estates  in  the  County  of  Limerick,  and  in  the 
City  of  Limerick,  but  in  fact  he  had  no  estates  in  the  former,  and 
only  a  small  one  in  the  latter  inadequate  to  meet  the  charges  in  the 
will,  but  he  had  large  estates  in  the  County  of  Clare,  which  were  not 
mentioned  in  the  will,  the  devisee  was  not  allowed  to  prove  by  parol 
evidence  that  the  testator's  intention  *was  to  devise  the  estates 
L  *"  -J  in  Clire  by  showing  that  those  estates  were  devised  to  him  in 
the  draft  of  the  will ;  that  this  was  se it  to  a  conveyancer  to  make 
some  alteration  as  to  other  parts  of  the  will,  and  he  had  by  mistake 
erased  the  words,  "  County  of  Clare,"  which  mistake  had  not  been 
adverted  to  by  the  devisor  when  he  executed  the  will. 

In  the  next  place,  extrinsic  evidence  is  admissible  for  the  purpose 
of  construing  ancient  charters,  explaining  the  meaning  of  the  terms 
of  contracts,  to  which  a  peculiar  and  technical  sense  has  been  an- 
nexed, by  custom  and  usage.  Also  for  the  purpose  of  showing  the 
consequences  and  incidents,  which,  by  virtue  of  a  known  and  estab- 
lished custom,  are  by  presumption  of  law  appurtenant  to  the  general 
terms  of  a  contract. 

In  ancient  cliarters  words  are  often  to  be  found  of  doubtful  import 
from  their  antiquity;  the  particular  terms  may  have  become  obscure, 
or  even  obsolete ;  but  it  would  be  highly  unreasonable,  as  well  as  in- 
convenient, that  on  this  account  the  Avhole  should  perish  ;  the  terms 
were  probably  understood  when  the  instrument  was  made  ;  and  it  is 
also  probable  that  the  usage  and  practice  then  conformed,  and  that 
they  have  since  continued  to  conform,  with  the  real  meaning  and 
sense  of  those  expressions  ;  and  hence  such  ancient  and  continuing 
usage  may  with  reason  and  prudence  be  resorted  to  as  the  exposi- 
tors of  such  doubtful  terms''  and  phrases  ;  more  especially  where  the 

P8  BinfT.  (21  E.  C.  L.  R.)  244. 

•J  In  The  Attoraoj/- General  v.  Parker^  3  Atk.  576,  Lord  Ilardwicke  observed, 
that  in  the  conbtruction  of  ancient  grants  and  deeds  there  is  no  better  way  of 
construing  them  than  by  usage,  and  contemporanea  expositio  est  optima.  In  R. 
V.  Varlo,  Cowp.  248,  Lord  Mansfield  observed,  "Supposing  the  terms  of  the 
chartijr  doubtful,  the  usage  is  of  great  force  ;  not  that  usage  can  overturn  the 
clear  words  of  a  charter;  but  if  they  are  doubtful,  the  usage  under  the  charter 
will  tend  to  explain  the  meaning  of  them."  Lord  Coke  in  his  Comment  on  the 
Stat,  of  Glouce^^te^,  2  Inst.  282,  observes,  "  ancient  charters,  whether  they  be 
before  the  tinje  of  memory  or  after,  ought  to  be  construed  as  the  law  was  when 
the  charter  was  made,  and  according  to  ancient  allowance  ;"'  and  again,  "  when 


PAROL    EVIDENCE    TO    EXPLAIN    CHARTERS.  696 

charter  *concerns  the  public  interests  of  a  large  body,  who 
would  not,  it  may  be  presumed,  have  acquiesced  in  an  L  J 
illegal  interpretation  and  application  of  its  terms.  Such  evidence 
may  be  considered  as  somewliat  analogous  to  the  practice  of  the 
courts,  in  considering  the  usage  supplied  ])y  the  precedents  as  to  the 
construction  of  a  doubtful  statute,  except  that  the  courts  themselves 
notice  the  contemporaneous  and  subsequent  construction  put  upon 
the  statute  ;"■  but  in  the  case  of  a  charter,  the  usage,  if  not  admitted, 
must  be  ascertained  as  a  fact  by  a  jury. 

Such  evidence  in  aid  of  the  construction  of  a  doubtful  charter  is 
also  founded  in  part  upon  considerations  of  legal  policy  and  conve- 
nience, for  the  purpose  of  quieting  litigation,  and  supporting  long- 
continued  and  established  usages.'  In  the  case  of  Withnell  v.  Gart- 
ham,^  Lawrence,  J.,  observed,  "If  there  be  any  ambiguity  in  this 
*deed,  usage  is  admissible  to  explain  it;  and  the  argument  rifr-of-^ 
of  convenience  or  inconvenience  from  this  or  that  construc- 
tion of  a  deed  creates  that  sort  of  ambiguity  that  should  be  explained 
by  usage." 

In  the  case  of  Tlie  King  v.  Oshourne,''  by  the  terms  of  the  charter 
the  power  of  electing  aldermen  was  committed  tj  the  mayor  and 
commonalty.  According  to  the  usage.,  the  term  commonalty  included 
aldermen;  and  the   court  were   of   that   opinion   and  construed  the 

any  claimed,  before  the  justices  in  eyre,  any  franchises  by  an  ancient  charter, 
though  it  had  express  words  for  the  franchises  claimed,  or  if  the  words  were 
general,  and  a  continual  possession  pleaded  of  the  franchises  claimed,  as  if  the 
claim  was  by  old  and  obscure  words,  and  the  party  in  pleading,  expounded  them 
to  the  court,  and  averring  continual  possession  according  to  that  exposition,  the 
entry  was  ever  '  Iiiqiiiratur  super  possessionem  et  usum,^  &c.,  which  I  have  ob- 
served in  divers  records  of  those  eyres,  agreeable  to  that  old  rule,  '  Optimus  in- 
ierpres  rerum  usus.^  "  However  general  the  words  of  ancient  deeds  may  be, 
they  are  to  be  construed,  as  Lord  Coke  says,  by  evidence  of  the  manner  in  which 
they  have  been  possessed  and  used  :  per  Lord  Ellenborough,  in  Weld  v.  Hornby, 
7  East  199.  Long  user  may  serve  to  explain  an  ambiguous  Act  of  Parliament  : 
Stewart  v.  Lawton,  1  Bing.  (8  E.  C.  L.  R.)  377.  To  explain  what  is  meant  by 
"tithes"  in  a  crown  grant,  contemporaneous  leases  and  other  extrinsic  evidence 
and  testimony  are  admissible  to  show  the  kind  of  tithes  intended  to  be  conveyed  : 
Linton  School  v.  Scarlett,  2  Y.  &  J.  330  ;  and  see  Doe  v.  Beviss,  7  C.  &  B.  (62 
E.  C.  L.  R.)  456. 

'  See  R.  V.  Hogg,  1  T.  R.  728. 

■  See  the  observations  of  Buller,  J.,  Blanliey  v.  Winstanley,  3  1.  R.  228. 

*  6  T.  R.  383.  Where  the  nomination  of  a  curate  was,  by  a  deed  of  1656,  given 
to  the  "  inhabitants,"  it  was  held  that  the  word  was  properly  explained  by  past 
usage  to  mean  "  all  housekeepers." 

»  4  East  327. 


697  PROOFS. 

charter  accordingly/.  Usage  was,  on  the  same  principle,  admitted 
as  explanatory  evidence  as  to  the  mode  of  presentation,  where  a  pre- 
sentation to  a  curacy  had  been  given  by  deed  ninety  years  before 
to  the  par  is! doner  8  and  inJiabitants  of  Clerkenwell.y  Also,  in  order 
to  show  that  an  act,  which  by  the  terms  of  a  charter  was  committed 
to  the  mayor,  aldermen  and  burgesses,  or  the  greater  part  of  them, 
was  well  executed  by  the  majority  present  at  a  regular  meeting, 
although  not  by  a  majority  of  the  whole  number  f  that  a  presentation 
given  by  a  charter  to  the  mayor,  aldermen  and  burgesses,  was  pro- 
perly executed  by  the  mayor  and  aldermen  only;^  that  the  justices 
of  a  county  have  a  concurrent  jurisdiction  with  the  justices  of  a 
r*fiQSl  ^o^^ug^'*'  under  the  particular  *charter.  Again,  where  the 
power  of  appointing  a  schoolmaster  was  given  to  the  minister 
and  churchwardens,  to  show  that  an  appointment  by  the  minister  and 
a  majority  of  the  churchwardens  is  good.''  And  a  charter  of  Richard 
II.,  empowering  the  Merchant  Tailors'  Company  to  elect  a  master 
and  warden  de  scriptis,  but  not  prescribing  the  mode,  was  considered 
to  be  properly  construed  in  that  respect  by  the  usage. "^ 

It  is  not  essential  to  the  admissibility  of  evidence  of  usage  that  the 
instances  proved  should  be  as  ancient  as  the  deed;   a   custom   from 

^  Lord  Ellenborough  said,  that  without  resortino;  to  any  assistance  from  con- 
temporaneous and  subsequently  continuing  usage  (to  which,  however,  in  such 
cases,  upon  the  best  authorities  in  the  law,  resort  may  allowably  be  had),  on  the 
face  of  the  charter  itself,  by  a  fair  construction  of  it,  commonalty  does  include 
aldermen. 

^  Attorney- General  v.  Parker^  3  Atk.  576  ;  Attorney-General  v.  Foster,  10  Ves. 
335;  R.v.  Davies,  6  Ad.  &  E.  (33  E.  C.  L.  R.)  374. 

^  R.  V.  Varlo,  Cowp.  248.  But  as  to  the  decision  in  this  case,  vide  infra,  p.  699, 
note  [f).  See  also  J?,  v.  Oshourne,  4  East  327  ;  Bailiffs  of  Tewkesbury  v.  Brick- 
nell,  2  Taunt.  120 ;  R.  v.  Mayor  of  Chester,  1  M.  &  S.  101  ;  Chad  v.  Tilsed,  2  B. 
&  B.  (6  E.  C.  L.  R.)  409;  R.  v.  Mayor,  (be.,  of  Stratford-iqjoji-Avon,  14  East 
348  ;  Mayor  of  London,  &c.,  v.  Long,  1  Camp.  22  ;  Weld  v.  Hornby,  7  East  199  ; 
see  also  R.  v.  Mayor  of  St.  Alban's,  12  East  559. 

"  Gape  V.  Bandley,  3  T.  R.  288,  n. 

^  Blankley  v.  Winstanley,  3  T.  R.  279,  Note,  Buller,  J.,  observed  that  "  Usage 
consistent  with  the  charter  has  prevailed  for  one  hundred  and  ninety  years  past, 
and  if  the  words  of  the  charter  were  more  disputable  than  they  are,  I  think  that 
ought  to  govern  the  case.  There  are  cases  in  which  the  court  has  held  that 
settled  usage  would  go  a  great  way  to  control  the  words  of  a  charter ;  and  it 
is  for  the  sake  of  quieting  corporations  that  this  court  has  always  upheld  long 
usage,  where  it  was  possible,  though  recent  usage  would  perhaps  not  have 
much  weight."  And  see  per  Patteson,  J.,  R.  v.  Atwood,  4  B.  &  Ad.  (24  E.  C. 
L.  R.)  507. 

«  Withndl  V.  Gartham,  6  T.  R.  388. 

<»  R.  V.  Atwood,  iB.  &  Ad.  (24  E.  C.  L.  R.)  481. 


PAROL     EVIDENCE     TO     EXPLAIN     CHARTERS.  698 

time   of  legal  memory  is  frequently  established  by  evidence  of  facts 
done  at  a  much  later  period.® 

Where,  however,  the  terms  of  an  ancient  charter  are  not  in  them- 
selves doubtful,  either  from  the  use  of  equivocal  and  obscure  terms, 
or  in  point  of  legal  construction,  evidence  of  usage  can  no  longer 
avail ;  its  legitimate  object  is  to  remove  doubts  ;  its  functions  there- 
fore cease  where  no  doubt  exists ;  and  to  admit  it  in  such  a  case 
would  be  not  to  obviate,  but  to  create  doubts.  Where  a  statute  con- 
stituted a  body  of  forty-eight,  with  power,  in  conjunction  with  certain 
others,  to  do  corporate  acts  in  the  town  of  Northampton,  it  was  held 
that  an  usage  of  three  hundred  years'  continuance  was  unavailable 
to  show  that  the  attendance  of  a  majority  of  forty-eight  was  not 
requisite,  the  general  question  having  been  *already  settled,  r^f^qoi 
that  where  such  powers  are  delegated  to  a  definite  body,  the 
attendance  of  a  majority  of  that  body  is  essential.^ 

To  decide  whether  the  construction  of  a  charter  be  so  doubtful  as 
to  admit  of  explanation  from  usage,  or  whether,  on  the  other  hand, 
the  terms  be  so  intelligible  in  their  usual  plain  and  ordinary  sense,  or 
by  any  necessai-y  construction  of  law,  with  reference  to  antecedent 
decisions,  is  obviously  a  pure  question  of  law.^  The  ambiguity,  to 
require  such  aid,  must  clearly  be  such  as  arises  upon  reading  the 
instrument  itself,  independent  of  any  extrinsic  considerations ;  and 
unless  a  doubt  arises  from  that  source  usage  can  avail  nothing  ;  for 
if  it  be  consistent  with  the  legal  construction  of  the  deed,  it  is  unim- 
portant ;  if  it  be  contrary  to  such  construction,  to  admit  it  would  be, 
not  to  explain,  but  to  subvert,  an  authentic  instrument  by  the  aid  of 
presumption  and  opinion.     In  the  case  of  Stammers  v.  Dixon^  where 

^  See  Lord  Kenyon's  observations  in  Withnell  v,  Gartham,6  T.  R.  388  ;  where 
the  question  was  upon  the  construction  of  an  ancient  deed,  granting  to  the 
minister  and  churchwardens  of  a  parish  the  power  of  appointing  a  school- 
master, 

'  B.  V.  Miller,  6  T.  R.  268  ;  and  see  E.  v.  Bellringer,  4  T.  R.  810.  There  the 
charter  of  Bodmin  gave  power  to  a  definite  body,  which  was  exercised  by  a  ma- 
jority of  the  subsisting  body,  but  not  by  a  majority  of  the  definite  number. 
Usage  was  adduced  to  show  that  a  majority  of  the  definite  number  was  essential ; 
but  the  court  declined  to  decide  upon  the  validity  of  the  usage  alleged,  being  of 
opinion,  upon  the  construction  of  the  charter,  and  without  reference  to  usage, 
that  a  majority  of  the  whole  definite  body  was  requisite:  see  Bailiffs  of  God- 
manchester  v.  PhiUips,  4  A.  &  E.  (31  E.  C.  L.  R.)  550. 

8  See  the  observations  of  Sir  D.  Evans  on  this  head,  2  Evans's  Pothier  213, 
et  sequent. 

^  7  East  200;  Lord  Petre  v.  Blencoe,  4  Gwill.  1484  ;  see  per  Wilde,  C.  J.,  Cox 
V.  Glue,  5  C.  B.  548  ;  Doe  v.  Beviss,  7  C.  B.  (62  E.  C.  L.  R.)  483. 


699  PROOFS. 

the  ancient  admissions  of  the  copyholders  were  to  land  bj  the  de- 
scription of  tres  acras  prati,  it  was  held  that  evidence  was  admissible 
to  show,  from  acts  of  enjoyment,  that  the  admission  must  be  con- 
strued to  mean  prima  tonsura  only.  Even  in  the  case  of  a  statute, 
universal  usage  has  sometimes  been  resorted  to  for  the  purpose  of  ex- 

^  -   ^      plaining  doubtful  terms.'     And  in   the  case   of    Withnell  v. 

r  7001  . 

•-         -'    Garthamy-  *it  was  held  that  evidence  of  usafre  was  as  much 

admissible  to  construe  a  deed  made  by  the  founder  of  a  school,  though 
a  private  person,  as  in  the  case  of  the  King's  charter. 

The  doctrine  of  applying  evidence  of  contemporaneous  usage  to 
the  construction  of  ancient  deeds,  has,  it  appears,  been  applied  to 
merely  private  as  well  as  to  public  instruments  ;'  but  it  is  obvious 
that  the  reasons  for  allowing  it  in  the  former  case  apply  with  much 
less  force,  inasmuch  as  the  mere  assent  and  acquiescence  of  a  private 
person,  who  may  have  been  ignorant  of  his  rights,  affords  a  presump- 
tion very  inferior  in  weight  to  that  Avhich  is  to  be  derived  from  the 
long-established  practice  and  usage  of  a  public  body.  The  applica- 
tion of  this  principle  to  the  case  of  private  instruments  has,  however, 
been  denied  in  two  instances™  in  equity,  and  it   seems  to  be  very 

*  Sheppard  v.  Gosnold,  Vaugh.  169  ;  B.  v.  Scott,  3  T.  R.  604;  Corporation  of 
Dunbar  v.  Duchess  of  Roxhury,  3  CI.  &  F.  33.  But,  in  general,  evidence  is  not 
admissible  to  explain  the  meaning  of  a  statute,  as  to  show  what  is  meant  by 
the  word  square  according  to  the  technical  usage  of  the  trade  :  The  Attorney- 
General  V.  The  Plate  Glass  Co.,  1  Anst.  39.  Where  a  contract  is  for  so  many 
bushels  of  corn,  statutory  bushels  must  be  intended:  Hockin  v.  Cooke,  4  T.  R. 
314. 

^  6  T.  R.  388.  Lord  Kenyon  observed,  that  if  there  were  any  difference,  it 
would  be  in  favor  of  the  admissibility  in  the  case  of  a  private  deed,  for  the 
King's  grants  are  not  construed  strongly  against  the  grantor,  as  private  deeds  are. 

'  In  the  case  of  Cooke  v.  Booth,  Cowp.  819,  the  doctrine  was  extended  to  a 
subject  of  a  nature  merely  private.  A  lease  contained  a  covenant  of  renewal ; 
the  question  was,  whether  by  the  terms  of  the  covenant  each  subsequent  lease 
was  to  contain  a  similar  covenant ;  and  as  there  had  been  several  successive  re- 
newals, with  similar  covenants,  the  court  held  that  the  parties  by  their  practice 
had  put  their  own  construction  on  the  covenant,  and  were  bound  by  it.  Where 
the  terms  of  an  award  are  aml)iguous  in  relation  to  a  road,  subsequent  usage  is 
admissible  in  explanation  of  its  meaning:  Wadley  v.  Bayliss,  5  Taunt.  (1  E.  C. 
L.  R.)  752. 

"■  Buyham  v.  Gay's  Hospital,  3  Ves.  298  ;  6  Ves.  237.  In  the  case  of  Iggulden 
V.  May,  in  error,  2  N.  R.  449,  Mansfield,  C.  J.,  in  giving  judgment,  observed 
upon  the  case  of  Cooke  v.  Booth,  "  We  think  that  was  the  first  time  that  the  acts 
of  the  parties  to  a  deed  were  ever  made  use  of  in  a  court  of  law  to  assist  the 
construction  of  that  deed  ;"  s.  0.  7  East  237.  In  Hughes  v.  Gordon,  1  Bli.  289) 
it  was  said  that  evidence  to  explain  a  deed  was  highly  dangerous,  except  in 
cases  of  fraud  or  misrepresentation  ;  and  see  Clifton  v.  Wahncsley,  5  T.  R.  564  j 
Clinan  v.  Cooke,  1  Sch.  &  Lef.  22 ;  Stammers  v.  Dixon,  7  East  200. 


PAROL     EVIDENCE    TO     EXPLAIN    CONTRACTS.  701 

doubtful  *whcther  such  evidence  would  now  be  received  in  a 
court  01  law.  ^         -^ 

Where  terms  are  used  which  are  known  and  understood  by  a  par- 
ticular class  of  persons,  in  a  certain  special  and  peculiar  sense,  evi- 
dence to  that  effect  is  admissible  for  the  purpose  of  appli/ing  the  in- 
strument to  its  proper  subject-matter  ;  and  the  case  seems  to  fall 
within  the  same  consideration  as  if  the  parties  in  framing  their  con- 
tract had  made  use  of  a  foreign  language,  which  courts  are  not  bound 
to  understand.  Such  an  instrument  is  not  on  that  account  void ;  it 
is  certain  and  definite  for  all  legal  purposes,  because  it  can  be  made 
so  in  evidence  through  the  medium  of  an  interpreter.  Conformably 
with  these  principles,  the  courts  have  long  allowed  mercantile  instru- 
ments to  be  expounded  according  to  the  usage  and  custom  of  mer- 
chants, who  have  a  style  and  language  peculiar  to  themselves,  of 
which  usage  and  custom  are  the  legitimate  interpreters."^ 

°  A  jury  may  properly  judge  of  the  meaning  of  mercantile  phrases  in  the 
letters  of  merchants:  Lucas  v.  Groning,  7  Taunt.  (2  E.  C.  L.  R.)  164;  Mallan 
V.  May^  13  M.  &  W.  511.  Hence  witnesses  may  be  called  to  show  that  a  par- 
ticular expression  in  a  commercial  contract  is  understood  in  the  mercantile 
world,  in  a  different  sense  from  its  ordinary  import :  Chaurand  and  another  v. 
Angerstein,  Peake,  C.  43.  Or  that  particular  meaning  was  affixed  to  a  word  of 
indeterminate  signification  (privilege),  in  a  previous  conversation  between  the 
parties :  Birch  and  another  v.  Depeyster,  4  Camp.  C.  385  ;  1  Stark.  C.  (2  E.  C.  L. 
R.)210,  s.  c. ;  andsee7if^uZ(7env.  3%,7East237;  9Ves.325;  2  N.R.  449,s.c.  A 
bill  of  lading  contains  a  memorandum,  "  to  be  discharged  in  fourteen  days,"  or 
pay  five  guineas  a  day  demurrage  ;  evidence  of  usage  may  be  adduced  to  show, 
that  working  days,  and  not  running  days  are  meant :  Cochran  v.  Betberg,  3  Esp. 
C.  121.  Parol  evidence  may  likewise  be  given  to  show  that  in  a  particular 
place,  trade  or  business,  e.  g.,  that  of  an  auctioneer,  the  term  "month"  means 
calendar,  and  not  lunar  month:  Simpson  v.  Margitson,  11  Q.  B.  (03  E.  C.  L. 
R.)  23.  So,  to  show  that  in  the  theatrical  world  an  engagement  for  three  years 
means  three  seasons  :  Grant  v.  Maddox,  15  M.  &  W.  737.  So,  to  show  that  in 
matters  connected  with  the  rabbit  warrens  in  a  certain  district,  a  thousand 
rabbits  means  twelve  hundred :  Smith  v.  Wilson,  3  B.  &  Ad.  (23  E,  C  L  R.) 
728.  By  a  charter,  a  vessel  with  a  cargo  of  coals  to  Algiers  was  to  be  unloaded 
at  a  certain  rate  per  day,  and  if  detained  longer  the  charterer  was  to  pay  so 
much  per  day  from  the  time  of  the  vessel  being  ready  to  unload,  and  in  turn  to 
deliver.  Evidence  to  show  that  in  the  port  of  Algiers  these  words  had  acquired 
a  particular  meaning  was  held  admissible  :  Robertson  v.  Jackson,  2  C.  B.  (52  E- 
C.  L.  R.)  412.  So,  to  show  what  is  the  meaning  in  a  bill  of  lading  of  a  de- 
livery "  in  London  :"  Bourne  v.  Gatleffe,  3  M.  &  G.  (42  E.  C.  L.  R.)  643.  And 
where  timber  was  sold  warranted  "  sound,"  and  the  issue  was  whether  it  was 
sound,  evidence  was  admitted  to  show  that  in  the  timber  trade  the  word  sound 

'  Parol  evidence  is  always  admissible  for  the  purpose  of  applying  a  written 
instrument  to  its  proper  subject-matter  :   Bennett  v.  Pierce,  28  Conn.  315 ;  Hul- 


702  PROOFS. 

*Thu?,  a  general  warranty  in  a  policy  of  insurance  to  de- 
L        "-^    part  with   convoy,  may  be  proved,   according   to    mercantile 

had  a  technical  meanincr,  and  did  not  import  absolute  freedom  from  defects: 
Woodhouse  V.  Swift,  7  C.  &  P.  (32  E.  C.  L.  R.)  310.  Evidence  of  a  communi- 
cation to  the  insurer  is  admissible  to  define  what  otherwise  is  indefinite  :  Urqu- 
hart  V.  Barnard,  1  Taunt.  450 ;  but  in  general,  in  the  construction  of  an  a«;ree- 
ment  or  deed,  the  conduct  or  correspondence  of  the  parties  cannot  be  taken 
into  consideration:  see  Simpson  v.  Margitson,  11  Q.  B.  (63  E.  C.  L.  R.)  23; 
Sugden's  Concise  View  of  the  Law  of  Vendors  and  Purchasers,  p.  116.  Where 
an  entry  made  by  a  clerk  since  deceased  is  ambiguous,  a  person  conversant 
with  the  mode  in  the  office  in  which  the  business  was  conducted  may  be  called 
to  explain  a  particular  item :  Hood  v.  Reeve,  3  C.  &  P.  (14  E.  C.  L.  R. )  532.  In 
trover  for  goods  sent  by  the  plaintiff  to  the  defendant,  a  packer,  and  expressed 
in  the  receipt  to  have  been  received  on  account  of  the  plaintiff  for  3f.,  the  party 
to  whom  they  had  been  sold  ;  it  was  held,  that  evidence  of  the  usage  of  trade 
was  admissible  to  explain  the  meaning  of  ambiguous  terms  in  such  receipt: 
Bowman  v.  Horsey,  2  M.  &  R.  85 ;  see  Si/ers  v.  Bridge,  Doug.  527 ;  Edie  v.  East 
India  Company,  2  Burr.  1216  ;  1  Ves.  459.  But  evidence  that  "last"  imported 
foreign,  not  English  measure,  was  held  inadmissible  :  Muller  v.  Living,  4  Taunt. 
102;  and  see  HoeJcin  v.  Cooke,  4  T.  R.  314.  And  Cresswell,  J.,  refused  to 
admit  evidence  of  what  was  meant  by  "  building"  in  a  contract  for  building 
cottages  :  Charlton  v.  Gibson,  1  C.  &  K.  (47  E.  C.  L.  R.)-54l  ;  see  Shore  v.  Wilson, 
9  CI.  &  F.  499.  So  evidence  to  show  that  cargo  and  freight  apply  to  passengers 
as  well  as  goods  has  been  rejected  as  inadmissible  :  Lewis  v.  Marshall,  7  M.  & 
G.  (49  E.  C.  L.  R.)  729 ;  or  that  a  contract  to  sell  Ware  potatoes  meant  a  par- 
ticular sort  of  Ware  potatoes:  Sruith  v.  Jeffreys,  15  M.  &  W.  561. 

ton  V.  Arnitt,  51  111.  198  ;  Hughes  v.  Sandal,  25  Tex.  162  ;  State  v.  Hagood,  23 
Ark.  553  ;  Webster  v.  Blount,  39  Mo.  500  ;  Eagg  v.  Hale,  40  Vt.  138  ;  Gould  v. 
Lee,  5  P.  F.  Smith  99  ;  Ames  v.  St.  Paul  R.  R.  Co.,  12  Minn.  412 ;  Marshall  v. 
Gridla/,^e,  111.  247;  Sargeant  v.  Solberg,  22  Wis.  132;  Young  v.  Ticigg,  27 
Md.  620;  Creasy  v.  Alverson,  43  Mo.  13  ;  SwoU  v.  Shumivay,  102  Mass.  365. 

In  a  mercantile  transaction,  where  the  terms  of  a  written  instrument  are  tech- 
nical or  equivocal  on  its  face,  or  are  made  so  by  reference  to  extraneous  cir- 
cumstances, parol  evidence  of  the  usage  and  practice  in  the  trade  is  admissible 
to  explain  their  meaning  :  William  v.  Wood,  16  Md.  220  ;  Myers  v.  Walker,  24 
111.  133.  Parol  evidence  is  admissible  to  explain  the  meaning  of  a  technical 
term,  the  signification  of  which  is  only  known  to  those  engaged  in  the  ti-ade : 
Smith  V.  Clayton,  5  Dutch.  357  ;  New  Jersey  Co.  v.  Boston,  2  McCarter  418. 

A  bill  of  lading  cannot  be  contradicted  or  varied  by  parol  evidence  :  Cox  v. 
Peterson,  30  Ala.  608 ;  Indianapolis  Railroad  Co.  v.  Remmy,  13  Ind.  518  ; 
Arnold  v.  Jones,  26  Tex.  335.  Contra,  Baker  v.  Michigan  R.  R.  Co.,  42  111.  73 ; 
Goddard  v.  Mullory,  52  Barb.  87  ;  Baltimore  Steamboat  Co.  v.  Brown,  4  P.  F. 
Smith  77  ;  Hedricks  v.  Steamship  Morning  Star,  IS  La.  Ann.  353  ;  Blade  v. 
Chicago  Railroad  Co.,  10  Wis.  4.  A  statement  contained  in  a  receipted  bill  for 
towing,  delivered  in  advance  to  the  owner  of  the  vessel  towed,  that  the  towing 
is  "  at  the  risk  of  the  owner  or  master  of  the  vessel  towed,"  is  a  contract  in 
writing,  within  the  rule  which  excludes  parol  evidence  to  contradict  or  vary  its 


PAROL    EVIDENCE    TO     EXPLAIN    CONTRACTS.  703 

*usage  and  understandino;,  to  be  satisfied  by  a  ioiuiii!:'  of   ^  „^„ 
&  o'  J       J         o  r*703T 

convoy  at  the  nearest  usual  place  of  rendezvous."  '-         -■ 

So,  where,  upon  the  sale  of  a  cargo,  the  vendor  covenanted  to  pay 

all  duties,  allowances,  &c.,  to  be  taken  out  of  them,  he  was  permitted 

"  Letliullier'' s  case,  2  Salk.  443.  In  Lilly  v.  Ewer,  Dougl.  72,  evidence  of  mer- 
chants was  received  upon  the  question  whether  "  sailing  with  convoy  "  meant 
for  the  whole  voyage  or  not.  In  Robertson  v.  French,  4  East  130,  Lord  Ellen- 
borough  observed,  that  the  same  rales  which  applied  to  all  other  instruments 
applied  also  to  a  policy  of  insurance,  that  is,  to  be  construed  according  to  its 
sense  and  meaning,  as  collected,  in  the  first  place,  from  the  terms  used  in  it, 
which  are  to  be  understood  in  their  plain,  ordinary  and  popular  sense,  unless 
they  have  generally  in  respect  of  the  subject,  as  by  the  known  usage  of  trade, 
or  the  like,  acquired  a  peculiar  sense  distinct  from  the  popular  sense  of  the 
word :  Salvador  v.  Hopkins,  3  Burr.  1707. 

terms  :  Milton  v.  Hudson  River  Steamboat  Co.,  4  Lans.  76.  For  other  cases  in 
which  parol  evidence  is  admissible,  see  Locke  v.  Rowell,  48  N.  H.  46 ;  Cany  v. 
Bright,  8  P.  F.  Smith  70 :  Naile  v.  Peirce,  32  Md.  327  ;  Pike  v.  Fay,  101  Mass, 
134;  Gray  v.  Ogler,  2  Bush  256  ;  Cunningham  v.  Parks,  97  Mass.  172;  Willis 
V.  Fernald,  33  N.  J.  (Law)  206  ;  Hotchkiss  v.  Barnes,  34  Conn.  27 ;  Hntchins  v. 
Hibbard,  34  N.  Y.  24 ;  Banaby  v.  Suaer,  18  La.  Ann.  148.  It  is  admissible  to 
show  an  independent  collateral  contract  as  inducement  to  or  consideration  for 
the  written  instrument :  Flanders  v.  Fay,  27  Ind.  72 ;  Bonney  v.  Morrill,  57 
Me.  368  ;  Bussell  v.  Willard,  44  Vt.  44  ;  Hubbell  v.  Ream,  31  Iowa  289  ;  Lytle 
v.  Baj-r,  7  Cald.  303;  Vanderkarr  v.  Thompson,  19  Mich.  82;  Shepherd  v. 
Wysong,  3  W.  Va.  46  ;  Branch  v.  Wilson,  12  Fla.  543  ;  Perry  v.  Central  R.  R. 
Co.,  5  Cald.  138.  When  a  written  contract  for  the  sale  of  real  estate  is  silent  as 
to  the  mode  in  which  payment  is  to  be  made,  parol  evidence  is  admissible  to 
show  how  and  in  what  payment  was  to  be  made,  that  being  an  independent  col- 
lateral fact :  Paul  v.  Owings,  32  Md.  402.  Parol  evidence  of  an  agreement  in 
regard  to  the  application  of  a  payment  under  a  written  agreement  is  admissi- 
ble:  Foster  v.  McGraw,  14  P.  F.  Smith  464;  Wright  v.  Smith,  82  Mass.  499. 
Grantee  may  disprove  collateral  facts  recited  in  the  grant  not  essential  to  the 
validity  of  the  conveyance :  Ingersoll  v.  Truebody,  40  Cal.  603.  Facts  existing 
at  the  time  and  circumstances  attending  the  execution  of  a  paper  may  be  given 
in  evidence  to  explain  it:  Richards  v.  Schlegelmick,  65  N.  C.  150;  Foster  v. 
McGraw,  14  P.  F.  Smith  464.  As  between  the  parties  liable  upon  a  promis- 
sory note  or  bill  of  exchange  the  form  of  the  instrument  is  not  conclusive,  but 
their  actual  relations  may  be  shown  by  parol  to  be  other  than  they  appear  to 
be :  Lacy  v.  Lofton,  26  Ind.  324.  The  rule  that  parol  evidence  is  not  admissi- 
ble to  contradict  or  vary  written  contracts  or  their  legal  effect  does  not  apply 
to  cases  arising  between  sureties  :  Thomas  v.  Truscott,  53  Barb.  200.  Parol 
evidence  is  admissible  to  show  that  the  money  expressed  in  a  written  contract 
was  Confederate  money:  Thorington  v.  Smith,  8  "Wall.  1,  12.  Evidence  is  ad- 
missible to  show  that  the  respective  parties  to  a  contract  are  interested  in  its 
subject-matter  in  a  different  manner,  capacity  or  extent,  than  is  indicated  on 
the  face  of  the  contract,  or  to  show  who  are  the  real  principals  in  the  transac- 
tions to  which  the  contract  relates :  Ellis  v.  Crawford,  39  Cal.  523. 


703  PROOFS. 

to  adduce  proof  of  a  custom,  to  show  that  such  allowances  were  to 
be  limited''  to  the  price  which  he  should  receive. 

Where  it  was  stipulated  in  a  charter-party  that  the  captain  should 
receive  a  stipulated  sum  in  lieu  of  privilege  and  jirimage^  and  the 
question  was,  whether  the  terms  of  the  contract  excluded  all  right 
on  the  part  of  the  captain  to  use  the  cabin  for  the  carriage  of  goods 
on  his  own  account,  Gibbs,  C.  J.,  said,  evidence  may  be  received  to 
show  the  sense  in  which  the  mercantile  part  of  the  nation  use  the 
term  'privilege,  just  as  you  would  look  into  a  dictionary  to  ascertain 
the  meaning  of  a  word ;  and  it  must  be  taken  to  have  been  used  by 
the  parties  in  its  mercantile  and  established  sense. '^ 

*In  the  case  of  Cutter  v.  PoweZZ,  where  a  promissory  note 
L  ^'  was  given  to  a  sailor,  to  be  paid  provided  he  served  on  board 
the  ship  as  second  mate  during  the  voyage,  and  he  died  before  the 
completion  of  the  voyage,  the  court,  deciding  upon  the  terms  of  the 
contract,  held  that  his  administrator  was  not  entitled  to  recover  pro 
ratd  for  the  time  during  which  he  served  ;  but  it  appears  from  the 
language  of  the  court  in  that  case,  that  if  a  custom  could  have  been 
established  that  such  notes  were  in  general  use,  and  that  the  commer- 
cial world  would  have  acted  upon  them  in  a  different  sense,  they 
would  have  decided  differently."^ 

It  is  to  be  observed,  that  it  has  been  questioned  by  the  highest  au- 
thorities, whether  the  practice  of  construing  mercantile  documents  by 
usage  has  not  been  carried  too  far. 

In  the  case  of  Anderson  v.  Pitcher,^  Lord  Eldon  observed,  "It  is 

P  Baker  v.  Paine,  1  Ves.  459  ;  Ibid.  317  ;  see  6  Ves.  366,  n. ;  Ekins  v.  Mack- 
lish,  Amb.  186  ;  Ford  v.  Hopkins,  Salk.  283  ;  Henkle  v.  Royal  Exchange  Assu- 
rance Company,  1  Ves.  318  ;  Thomas  v.  Frazer,  3  Ves.  jun.  399  ;  10  Ves.  227. 

■1  Birch  V.  Dejyeyster,  1  Stark.  C.  (2  E.  C.  L.  R.)  210.  And  note,  that  in  that 
case  the  same  learned  judge  admitted  evidence  of  a  conversation  between  the 
parties,  to  show  in  what  sense  they  used  the  term.  lie  said,  he  thought  such 
evidence  fell  within  the  general  current  of  mercantile  understanding  ;  since,  if 
the  term  had  been  used  in  different  trades  in  different  ways,  the  conversation 
was  evidence  to  show  in  what  sense  it  was  used  on  that  occasion.  So,  evidence 
has  been  admitted  for  the  purpose  of  showing  the  understanding  of  mariners  in 
geographical  matters  ;  as,  to  show  that  the  Mauritius  is  considered  to  be  an  East 
India  Island:  Robertson  v.  Money,  R.  &  M.  (21  E.  C.  L.  R.)  75;  and  the  Gulf 
of  Finland  a  part  of  the  Baltic  Sea:  Uhde  v.  Walters,  3  Camp.  16. 

'  Cutter  v.  Powell,  6  T.  R.  320. 

'  2  B.  &  P.  164.  The  question  in  that  case  was  as  to  the  meaning  of  a  war- 
ranty (contained  in  a  policy)  to  depart  with  convoy ;  and  it  was  held  that  it 
is  not  complied  with,  unless  sailing  instructions  be  obtained  before  the  ship 
leaves  the  place  of  rendezvous,  if  by  due  diligence  they  can  be  obtained.      So, 


PAROL  EVIDENCE  TO  EXPLAIN  CONTRACTS.     70  i 

now  too   late  to  say  that  this  warranty  (in  a  policy  of  insurance)  is 

not  to  be  expounded  with  due  regard  to  the  usage  of  trade.     Perhaps 

it  is  to  he  lamented  that  in   policies  of  insurance  parties  should  not 

be  left  to  express  their  own  meaning  by  the  terms  of  the  instrument. 

This  seems  to  have  been  the  opinion  of  that  great  judge,  Lord  Holt.' 

It  is  true,  indeed,  that  Lord  Mansfield,  Avho  may  be  considered  the 

establisher,  if  not   the  author,  of  great   part   of  this   law,   expressed 

himself  thus,  'whenever  *you  render  additional  words  neces-    ^  „^^^ 

.  .  .  .      r  7051 

sary,  and  multiply  them,"  you  also  multiply  doubts  and  criti-    L         -■ 

cisms.'  Whether,  however,  it  be  not  true,  that  as  much  subtlety  is 
raised  by  the  applicjftion  of  usage  to  the  construction  of  a  contract, 
as  by  the  introduction  of  additional  words,  might,  if  the  matter  were 
res  Integra,  be  reasonably  questioned." 

The  legitimate  object  of  extrinsic  evidence,  in  such  cases,  seems  to 
be  to  explain  terms  which  are  not  intelligible  to  all  who  may  under- 
stand the  language,  but  which  may  nevertheless  have  acquired,  by 
custom  and  usage,  a  known  definite  sense  and  meaning  amongst  a 
particular  class  of  persons,  which  can  be  well  ascertained  by  means 
of  the  testimony  of  those  who  are  conversant  with  the  peculiar  use  of 
those  terms.  The  witnesses  for  this  purpose  may  be  considered  to 
be  the  sworn  interpreters  of  the  mercantile  language  in  which  the 
contract  is  written.''  Beyond  this,  however,  *the  principle 
does  not  extend ;  merchants  are  not  prohibited  from  annex-    L         J 

in  the  case  of  a  bill  of  lading,  &c.,  evidence  was  admitted  to  show  what  was 
meant  by  days:"    Cochran  v.  Eetberg,  3  Esp.  C.  121. 

*  LethuUier^s  case,  1  Salk.  443. 

"  Lilly  V.  Ewer,  Doug.  72. 

^  Within  this  principle  numerous  cases  have  occurred,  of  which  the  following 
may  be  cited  in  addition  to  those  already  referred  to.  Parol  evidence  has  been 
held  admissible  to  show  the  meaning  of  the  word  "level"  in  a  lease  of  coal 
mines:  Clayton  v.  Gregson,  5  Ad.  &  E.  (31  E.  C.  L.  R.)  302;  in  the  provision 
trade,  of  "  mess  pork  of  ;S.  &  Co. :"  Powell  v.  Horton,  2  Bing.  N.  C.  (29  E.  C. 
L.  R.)  668  ;  to  show  that,  in  the  hop  trade,  "  at  100s."  in  a  sold  note  in  these 
words,  "sold  M.  W.  18  pockets  of  Kent  hops,  at  100s.,"  meant  100s.  per  cwt., 
and  not  per  pocket:  Sjncer  v.  Cooper,  1  Q.  B:  (41  E.  C.  L.  R.)  424;  that  the 
word  London  has  a  colloquial  sense  other  than  that  of  the  City  :  Mallan  v.  May, 
13  M.  &  W.  511  ;  that,  in  the  corn  trade,  "good  barley"  means  a  different 
quality  from  "fine"  barley:  Hutchinson  v.  Bowker,  5  M.  &W.  535;  see  Robert- 
son V.  Jackson,  2  C.  B.  (52  E.  C.  L.  R.)  412,  sripra ;  that  amongst  sporting  per- 
sons a  race  "  across  a  country"  means  straight  without  deviating  through  open 
gates:  Evans  v.  Pratt,  3  M.  &  G.  (42  E.  C.  L.  R.)  759  ;  that  a  bale  of  cotton 
may  mean  a  bag  in  the  Alexandria  trade,  although  it  means  a  compressed  bale 
in  the  Levant  trade:  Taijlor  v.  Briggs,  2  C.  &  P.  (12  E.  C.  L.  R.)  525.  So, 
upon  a  contract  to  pay  at  so  much  per  ton  for  goods  shipped  at  Bombay,  cotton 


706  PROOFS. 

ing  what  weight  and  value  they  please  to  words  and  tokens  of  their 
own  peculiar  coinage,  as  may  best  suit  their  own  purposes,  but  they 
ought  not  to  be  permitted  to  alter  and  corrupt  the  sterling  language 
of  the  realm.  If  they  use  plain  and  ordinary  terms  and  expressions, 
to  which  an  unequivocal  meaning  belongs,  which  is  intelligible  to  all, 
then,  it  seems,  that  according  to  the  great  principle  so  frequently 
adverted  to,  that  plain  sense  and  meaning  ought  not  to  be  altered  by 
evidence  of  a  mercantile  understanding  and  usage.  It  is  clear,  indeed, 
that  if  a  contrary  practice  were  to  prevail,  and  be  carried  to  its  full 
extent,  the  effect  would  nearly  be  to  render  it  impossible  to  make  a 
special  contract  in  mercantile  affairs,  and  to  "Compel  all  persons, 
under  all  circumstances,  to  conform  to  all  the  usages  of  trade;  the 
written  contract  would  become  a  dead  letter ;  the  question  would  not 
be,  what  is  the  actual  contract,  but  what  is  the  usage;  and  the  very 
same  terms  would  denote  different  contracts  as  often  as  mercantile 
fashions  varied.  In  short,  the  jus  et  norma  loquendi,  in  a  legal 
sense,  would  become  wholly  dependent  on  the  usages  of  trade.^ 
Thus,  parol  evidence  is  inadmissible  to  explain  the  meaning  of  the 
words  "more  or  less"  in  a  mercantile  contract;^  and  in  unusual 
contracts  evidence  that  words  or  phrases  have  a  peculiar  meaning  is 
r*7n71  ^'^^  admissible.^  *So,  where  a  man  contracts  in  his  own 
name,  evidence  to  excuse  him  from  liability,  on  the  ground 
of  a  custom  of  trade  in  Liverpool  to  send  in  brokers'  notes  without 
disclosing  the  principal's  name,  was  rejected ;  and  Alderson,  B., 
said,   "the  custom  offered   to  be  proved  is  a   custom  to  violate  the 

to  be  calculated  at  fifty  cubic  feet  per  ton,  evidence  may  be  given  of  a  usai^e  to 
pay  according  to  the  measurement  at  Bombay :  Bottomley  v.  Forbes^  5  Bing.  N. 
C.  (35  E.  C.  L.  R.)  121.  In  like  manner,  parties  have  been  permitted  to  recon- 
cile apparent  variances  in  bought  and  sold  notes  by  the  testimony  of  brokers : 
Bold  v.  Rayner,  1  M.  &  W.  843.  Where  the  captain  of  a  ship  had  agreed  to 
convey  a  boat  for  the  plaintiff  of  stated  dimensions,  evidence  was  admitted  of 
the  practice  to  remove  the  decks  of  such  boats  when  put  on  board :  Haynes  v. 
HoUiday,  7  Bing.  (20  E.  C.  L.  R.)  587;  and  see  Hood  v.  Feeve,  3  C.  &  P.  (14  E. 
C.  L.  R.)  532.  In  Chaurand  v.  Angerstein,  Peake's  C.  43,  where  it  had  been 
represented  to  an  insurer  that  the  ship  would  sail  from  St.  Domingo  in  October, 
he  was  permitted  to  show  in  his  defence  that  this  was  understood  among  the 
merchants  to  mean  between  the  25th  and  the  end  of  October ;  and  see  other 
instances,  ante,  p.  701,  note  («),  and  p.  653.  The  admission  of  such  evidence 
seems,  however,  to  have  been  carried  further  than  either  principle  or  convenience 
warrants. 

y  See  Anderson  v.  Pitcher,  2  B.  &  P.  168. 

'  Cross  v.  Er/Iin,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  106. 

*  Lewis  v.  Marshall,  7  M.  &  G.  (49  E.  C.  L.  R.)  729. 


PAROL  EVIDENCE  TO  EXPLAIN  CONTRACTS.     707 

common  law  of  England."''  Where  a  merchant  carried  on  business 
as  a  tallow  merchant  abroad,  through  an  agent  who  always  used  his 
own  name  but  was  universally  known  to  represent  the  merchant,  and 
the  agent,  after  ceasing  to  represent  him,  made  a  contract  on  his 
own  account  and  in  his  own  name  as  usual,  the  relation  between  him 
and  the  merchant  not  being  known  to  have  been  dissolved  ;  evidence 
of  a  custom  in  the  tallow  trade  to  reject  on  such  contracts  the  prin- 
cipal, and  to  look  to  the  broker  for  the  fulfilment  of  the  contract, 
was  held  inadmissible.*^  And  the  existence  of  a  custom  in  a  district 
to  use  certain  terms  in  a  peculiar  sense  does  not  raise  a  conclusion 
of  law  that  parties  contracting  in  such  a  district  used  those  terms  in 
such  a  sense,  but  is  only  evidence  from  which  a  jury  may  draw  that 
conclusion.*^ 

Where  a  policy  of  insurance  (in  the  common  form)  expressed  "that 
the  insurance  on  the  said  ship  shall  continue  until  she  is  moored 
twenty-four  hours,  and  on  the  goods  till  safely  landed,"  the  Court  of 
King's  Bench  held  that  evidence  of  a  usage,  that  the  risk  on  the 
goods  as  well  as  the  ship  expired  in  twenty-four  hours,®  was  inadmis- 
sible. 

*Where  the  vendor  of  a  quantity  of  bacon  warranted  it  r*7nQ-i 
to  be  of  a  particular   quality,  it  was  held  that  he  could  not 

'^  Magee  v.  Atkinson,  2  M.  &  W.  440  ;  Jones  v.  Littledale,  6  Ad.  &  E.  (33  E.  C. 
L.  R.)  486. 

<=  Trueman  v.  Loder,  11  Ad.  &  E.  (39  E.  C.  L.  R.)  589. 

«  Clmjton  V.  Gregson,  5  Ad.  &  E.  (31  E.  C.  L.  R.)  302. 

^  Parkinson  v.  Collier,  Park  on  Ins.  74.  The  practice  of  construing  mercantile 
instruments  according  to  the  custom  of  trade  was  carried  to  a  great  length  in 
the  case  of  Donaldson  v.  Forster,  Sittings  after  Mich.  Term,  29  Geo.  III.,  Ab- 
bott's Law  of  Shipp.  275,  8th  ed.  There,  by  the  terms  of  the  charter-party,  it 
was  stipulated  that  the  merchant  should  have  the  exclusive  use  of  the  ship  out- 
wards, and  the  exclusive  privilege  of  the  cabin,  the  master  not  being  allowed  to 
take  any  passengers.  Thfe  defendants  insisted  that,  under  a  charter-party  so 
worded,  it  was  the  constant  usage  of  trade  to  allow  the  master  to  take  out  a  few 
articles  for  a  private  trade.  Lord  Kenyon  admitted  evidence  to  be  given  to 
prove  this  usage,  observing,  that  although  prima  facie  the  deed  excluded  this 
privilege,  yet  he  thought  the  deed  might  be  explained  by  uniform  and  con- 
stant usage,  the  usage  being  a  tacit  exception  out  of  the  deed.  Notwith- 
standing this  high  authority,  sanctioned  as  it  has,  in  some  measure,  been  by  its 
adoption  and  insertion  in  the  very  learned  work  from  which  it  is  cited,  some 
doubt  may  perhaps  still  be  entertained  whether  the  receiving  of  such  evidence 
be  strictly  warranted  in  principle.  It  should  be  added  that  no  verdict  was  given, 
one  of  the  jury  insisting  that  as  there  was  a  positive  contract  the  custom  was 
thereby  excluded :  see  Sir  D.  Evans's  remarks  in  his  edition  of  Pothier,  vol.  ii. 
p.  215. 


708  TROOFS. 

give  evidence  of  a  custom  in  the  trade,  that  the  buyer  was  bound  to 
reject  the  contract  if  he  was  dissatisfied  with  it  at  the  time  of  exam- 
ining the  commodity/  and  Heath,  J.,  who  tried  the  cause,  said  that 
it  would  breed  endless  confusion  in  the  contracts  of  mankind  if  cus- 
tom could  avail  in  such  a  case. 

So  where  words  have  a  known  legal  meaning  which  belongs  to 
them,  evidence  is  not  admissible  to  show  that  the  parties  intended  to 
use  them  in  a  different  sense  according  to  the  custom  of  the  country.*^ 

In  some  instances,  also,  where  expressions  of  an  ambiguous  nature 
have  been  employed,  even  in  an  instrument  which  the  hiw,  e.  g.,  the 
Statute  of  Frauds,  requires  to  be  in  writing,  parol  evidence  has  been 
admitted,  not  to  vary  the  terms  but  to  construe  the  instrument  and 
show  what  was  really  intended.  Thus,  where  the  words  used  to  ex- 
r*70Ql  pi'^ss  *the  consideration  of  a  guarantee  were  grammatically 
ambiguous  and  consistent  with  its  being  past  or  future;  for 
instance,  "in  consideration  of  your  having  this  day  advanced  to  A. 
B.  ,£750,"^  which  might  mean  in  consideration  "that  you  had  then 

f  Yeats  V.  Pim,  Holt's  C.  (3  E.  C.  L.  R.)  95;  6  Taunt.  (1  E.  C.  L.  R.)  446  : 
but  see  Byicater  v.  Richardson^  supra,  p.  655,  n.  (c). 

^  Doe  clem.  Spicer  v.  Lea,  11  East  312  ;  see  per  Parke,  B.,  Sutton  v.  Temple, 
12  M.  &  W.  63  ;  see  Custom.  To  what  extent  the  silence  of  a  mercantile  con- 
tract on  a  particular  point  may  be  supplied  by  evidence  of  the  general  course  and 
usage  of  trade  is  a  question,  which  it  would  be  difficult  to  answer  with  exactness 
and  precision  :  j>e?-  Tindal,  C.  J.,  WhUtaker  v.  Mason,  2  Ring.  N.  C.  (29  E.  C. 
L.  R.)  369. 

i-  Goldshede  v.  Swan,  1  Ex.  154.  In  Haigli  v.  Brooks,  10  A.  &  E.  (73  E.  C. 
L.  R.)  309,  a  guarantee  was  in  these  words:  "  Mr.  H.,  In  consideration  of  your 
being  in  advance  to  L.  in  the  sum  of  £10,000  for  the  purchase  of  cotton,  I  do 
hereby  give  you  my  guarantee  for  that  amount  on  their  behalf.  /.  5."  The 
objection  being  that  a  past  consideration  alone  was  contemplated  by  the  instru- 
ment, the  Court  of  Exchequer  Chamber  held,  on  writ  of  error,  that  there  was 
in  this  guarantee  an  ambiguity  which  might  be  explained  by  evidence.  So  in 
Butcher  v.  Stewart,  11  M.  &  "VV.  875,  where  the  words  were  "  having  released  :" 
and  Edwards  v.  Jevons,  8  C.  B.  (65  E.  C.  L.  R.)  436,  where  the  words  were 
"  giving  credit."  In  Bainbridge  v.  Wade,  20  L.  J.,  Q.  B.  7,  where  the  words 
were  "  any  sum  or  sums  of  money  due  to  you  from  L.,  the  amount  not  to  exceed 
at  any  time  the  sum  of  JCIOO,"  the  court  held  that  there  was  such  an  ambiguity 
as  might  be  explained  by  parol  evidence  of  the  circumstances  of  the  parties 
when  the  guarantee  was  given.  So,  whe];e  in  a  contract  to  be  paid  at  a  certain 
ratfi,  if  an  estate  were  sold  by  auction;  but  at  a  less  rate  if  it  were  not  sold 
within  two  months ;  although  four  weeks  is  the  primary  meaning  of  the  word 
month,  the  judge  may  construe  it  to  mean  calendar  months,  if  such  appears  to 
be  tlie  intention  of  the  parties  from  surrounding  circumstances  at  the  time  of 
making  the  contract:  Simj)son  v.  Maryitson,  11  Q.  B.  (63  E.  C.  L.  R.)  23  ;  Col- 
boitrn  v.  Dawson,  20  L.  J.,  C.  P.  154. 


PAROL    EVIDENCE    TO     EXPLAIN    WRITING.  709 

actually  advanced,"  or  "that  you  shall  have  this  day  advanced," 
evidence  was  admitted  to  show  that  the  advance  in  fact  was  not  a 
past  one,  but  was  made  at  the  same  time  as  the  guarantee  was  exe- 
cuted. 

Instances  have  also  occurred  in  which  cipher  abbreviations,'  or 
other  like  known  means,  have  been  used  in  contracts  or  other  instru- 
ments ;  in  such  cases  parol  evidence  is  necessarily  admitted,  for  the 
reasons  already  pointed  out,''  to  ascertain  their  meaning.  Thus, 
where  in  a  bet  on  a  match  to  run  one  greyhound  against 
another  *the  letters  P.  P.  were  added,  parol  evidence  was  ^  -J 
admitted  to  show  that  they  meant  "  play  or  pay."' 

In  many  instances,  too,  evidence  of  custom  and  usage  is  admissible 
for  the  purpose  of  annexing  incidents  to  the  terms  of  a  written  instru- 
ment, concerning  which  the  instrument  is  silent ;  although,  if  any 
condition  or  term  in  the  contract  is  necessarily  repugnant  to  or  in- 
consistent with  the  custom,  the  latter  is  excluded.™  The  principle 
upon  which  such  evidence  is  admissible,  seems  to  be  a  reasonable 
presumption  that  the  parties  did  not  express  the  whole  of  their  in- 
tention, but  meant  to  be  guided  by  custom  as  to  such  particulars  as 
are  generally  known  to  be  annexed  by  custom  and  usage  to  similar 
dealings.  It  is  evident  that  in  commercial  affairs,  and  all  the  other 
usual  and  common  transactions  of  life,  it  would  be  attended  with 
great  inconvenience  that  the  well-known  ordinary  practice  and  usage 
on  the  subject  should  not  be  tacitly  annexed,  by  virtue  of  such  a 
presumption,  to  the  terras  of  a  contract,  and  that  the  parties  should 
either  be  deprived  of  the  certainty  and  advantage  to  be  derived  from 
the  known  course  of  dealing,  or  be  placed  under  the  necessity  of 
laboriously  specifying  in  their  contracts  by  what  particular  usages 
they  meant  to  be  bound. 

It  is  unnecessary  to  allude  to  the  numerous  instances  in  which, 
upon  the  same  principle,  the  law  itself  annexes  its  own  terms  to  a 
contract.  If  a  contract  for  the  sale  of  goods  be  silent  as  to  the  time 
of  delivery,  the  law  annexes  the  terra  that  they  shall  be  delivered 
within  a  reasonable  tirae.  A  bill  of  exchange  is  payable  at  a  certain 
day  ;  but  the  law  allows  three  additional  days  of  grace,  concerning 
which  the  instrument  is  silent.  The  instance  of  a  bill  of  exchange  is 
also  a  strong  one  to  show  how  far  custom  operates  to  annex  terms  not 
expressed  in  the  instrument. 

•"  Goblet  V.  Beechey  and  others^  Executors  of  Kollel:ens^  3  Sim.  24. 
^  Supra,  p.  701. 
Daintree  v.  Hutchinson,  10  M.  &  W.  85. 
■"  Boon  V.  Whitney  Union,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  814. 


710  ,  PROOFS. 

^  „^^_,  It  has  been  held  that  a  tenant  might  avail  himself  of  a 
r  7111  . 

L  J  *local  custom  to  take  an  away-going  crop  after  the  expira- 
tion of  his  term  under  a  lease ;  for  the  custom  did  not  alter  or  contra- 
dict the  terms  of  the  lease,  but  merely  superadded  a  right  conse- 
quential to  the  taking."  Where  the  stipulations  in  a  lease  as  to  the 
mode  of  cultivation  applied  only  to  the  holding  during  the  tenancy, 
but  were  wholly  silent  as  to  the  terms  of  quitting  :  it  was  held  that 
an  affirmative  covenant,  that  the  wheat  lands  should  be  summer-fal- 
lowed, and  an  affirmative  custom  for  the  off-going  tenant  to  have 
one  proportion  of  the  wheat  for  a  way-going  crop,  if  sown  after  a 
summer- fallow,  and  another  proportion  if  sown  after  turnips,  were 
not  so  inconsistent  that  the  tenant  might  not  be  entitled  to  his  share 
of  wheat  growing  at  the  determination  of  the  tenancy  after  a  crop 
of  turnips,  the  landlord  having  a  right  of  action,  if  the  covenant  had 
not  been  observed."  Upon  the  same  principle,  evidence  was  admitted 
to  show  that  a  heriot  was  due  on  the  death  of  the  tenant  for  life, 
although  that  duty  was  not  expressed  in  the  lease.''  So  it  has  been 
held  that  a  custom  for  an  away-going  tenant  to  provide  work  and 
labor,  tillage  and  sowing,  and  all  materials  for  the  same,  in  his 
away-going  year,  the  landlord  making  him  a  reasonable  compensation, 
is  not  excluded  by  an  express  written  agreement  between  the  land- 
lord and  tenant,  Avhich  is  consistent  with  such  a  custom. "^ 

The  presumption  necessarily  ceases  where  it  can  be  collected,  from 
the  terms  of  the  instrument,  that  it  was  contrary  to  the  intention  of 
r*7ion  ^^^  contracting  parties,  in  the  *particular  instance  to  be 
guided  by  the  custom :  as  where  the  parties  have  actually 
expressed  an  intention  different  from  the  custom,  for  then  according 
to  the  general  rule  of  law,  expressum  faeit  cessare  taciturn  ;  or  even 
where  a  contrary  intention  may  be  inferred  from  the  terms  of  the 
contract.  Thus,  where  the  lease  specified  certain  payments  to  be 
made  by  the  in-coming  to  the  out-going  tenant  at  the  time  of  quitting, 
but  specified  no  payment  for  foldage,  it  was  held  that  this  agreement 

°  Wigcjlesivurth  v.  Dallison,  Dougl.  201  ;  and  see  the  notes,  1  Smith,  L.  C,  p. 
299. 

»  Holding  V.  rigott,  7  Bing.  (20  E.  C.  L.  R.)  465. 

P  Per  cur.  White  v.  Sai/er,  Pam.  211. 

^  Senior  v.  Armitage,  Ilolt's  C.  (3  E.  C.  L.  R.)  197  ;  see  Dalhy  v.  Hirst,  1  B. 
&  B.  (5  E.  C.  L.  R.)  224.  A  usaf^e  for  a  landlord  to  compensate  the  off-going 
tenant  for  tillinff,  fallowing,  and  manuring  aral)le  and  meadow  land,  according 
to  good  husljandry,  and  from  which  the  tenant  can  receive  no  benefit,  is  reason- 
able, and  is  to  be  considered  not  as  a  custom  but  a  usage,  and  need  not  be  from 
time  immemorial:  see  Jioxburghe,  Duke  of,  v.  liobcrioii,  2  Bligh  156. 


PAROL     EVIDENCE    TO     REBUT    PRESUMPTION.  712 

excluded  the  operation  of  a  custom  for  the  in-coming  tenant  to  pay 
to  the  out-going  tenant  an  allowance  for  foldage/ 

But  a  stipulation  as  to  quitting  does  not  exclude  so  much  of  a  cus- 
tom as  is  not  inconsistent  with  such  stipulation.  Where  a  lease  pro- 
vided for  the  tenant's  spreading  more  manure  on  the  premises  than 
the  custom  required,  leaving  the  rest  to  be  paid  for  by  tlie  landlord 
at  the  end  of  the  term,  and  the  custom  was  for  the  tenant  to  be  paid 
last  year's  ploughing  and  sowing,  and  to  leave  the  manure,  if  the  land- 
lord would  buy  it,  it  was  held  that  the  tenant  Avas  still  entitled  to  be  paid 
for  the  last  year's  sowing  and  ploughing,  according  to  the  custom.* 

Parol  evidence  was  admitted  to  show,  that  by  the  custom  of  the  coun- 
try the  word  "thousand,"  applied  in  a  lease  to  rabbits,  meant  1200.' 

*It  is  a  general  rule,  that  oral  and  extrinsic  evidence  is  r*"-,o-i 
admissible  to  rebut  a  presumption  of  law  or  equity.  Here 
the  evidence  is  not  offered  as  a  substitute  for  written  evidence,  but 
to  remove  an  impediment  which  would  otherwise  have  obstructed  or 
altered  its  operation."  Thus,  it  has  been  held  that  parol  evidence  is 
admissible  to  show  that  a  legacy  was  not  intended  in  satisfaction  of  a 
debt,''  or  that  the  testator,  although  he  gave  the  executor  a  legacy, 
intended  that  he  should  have  the  surplus,^  or  to  rebut  the  equity  of 

■■  Webb  V.  Plummer,  2  B.  &  Aid.  746  ;  Roberts  v.  Barker,  1  C.  &  M.  808  ; 
Hughes  v.  Gorden,  1  Bligh  287  ;  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22. 

»  Hutton  V.  Warren,  1  M.  &  W.  486  ;  Holding  v.  rigott,  7  Bing.  (20  E.  C.  L. 
R.)  465. 

'  Smith  V.  Wilson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  728.  So,  evidence  of  the  usage 
of  London  bankers  receiving,  from  their  correspondents  (country  bankers),  a 
power  of  attorney  to  sell  stock  of  a  customer  of  the  latter,  may  be  given  to  show 
that  all  moneys  so  received  are  placed  to  the  credit  of  the  country  banker : 
Adams  v.  Peters,  2  C.  &  K.  (61  E.  C.  L.  R.)  723 ;  of  trades  in  the  potteries,  that 
workmen  under  a  contract  to  work  for  a  whole  year  should  have  certain  holidays 
and  the  Sundays  to  themselves :  E.  v.  Stoke-upon-Trent,  5  Q.  B.  (48  E.  C.  L.  R.) 
303.  So,  a  usage,  where  goods  are  sold  by  sample,  of  a  custom  to  make  an  allow- 
ance for  such  as  do  not  answer  the  sample,  was  admitted  by  Cresswell,  J. :  Cooke 
v.  Riddelien,  1  C.  &  K.  (47  E.  C.  L.  R.)  561.  And  a  usage  in  the  tobacco  trade 
may  be  proved  to  show  that  all  sales  are  by  sample,  although  that  term  be  not 
expressed  in  the  bought  and  sold  notes :  Si/ers  v.  Jonas,  2  Ex.  Ill  ;  and  see  Fur- 
ley  V.  Wood,  1  Esp.  198 ;  Doe  v.  Benson,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  588 ;  and 
Smith  V.  Walton,  8  Bing.  (21  E.  C.  L.  R.)  235. 

"  2  Atk.  69,  99 ;  Amb.  126  ;  2  Vern.  252. 

^  Cuthbert  v.  Peacock,  2  Vern.  593.  But  see  Foivler  v.  Foicler,  3  P.  Wms. 
353  ;  where  an  allowance  of  pin-money  being  in  arrear  to  the  wife  for  two  years, 
Talbot,  C,  would  not  admit  evidence  to  show  the  intention  of  the  testator  that 
she  should  have  a  legacy  of  £500  in  addition  to  the  arrears. 

y  2  Vern.  252,  648,  673  ;  Wingjield  v.  Atkinson,  2  Vern.  673  ;  2  P.  Wms.  158  ; 
42 


713  PROOFS. 

an  heir  at  law.^     So,  where  the  conusor  of  a  fine  dies  before  the  uses 

r*714T    ^^®  dechired,  the  presumption   *that   the   fine   was  levied  to 

the  use  of  the  conusor  may  be  rebutted  by  evidence.* 

If  a  tenant  for  life  pays  off  a  charge  on  the  estate,  primd  facie,  he 
is  entitled  to  that  charge  for  his  own  benefit,  with  the  qualification 
of  having  no  interest  during  his  life.  If  a  tenant  in  tail  or  in  fee- 
simple  pays  off  a  charge,  that  payment  is  primd  facie,  presumed  to 
be  made  in  favor  of  the  estate;  but  the  presumption  may  be  rebutted 
by  evidence,  as  by  calling  for  an  assignment,  or  by  a  declaration.** 

So,  oral  evidence  has  been  admitted  by  courts  of  equity  to  show 
that  a  portion  advanced  to  a  child  subsequent  to  the  making  of  a 
will,  and  of  the  same  amount  with  the  legacy,  was  not  intended  as  an 
ademption  of  a  legacy ;"  and  for  this  purpose,  and  to  show  the  real 
intention,  even  oral  declarations  are  admissible."^ 

9  Mod.  9;  1  Str.  568.  So,  where  the  wife  was  executrix,  and  real  and  personal 
property  were  left  to  her  by  her  husband  :  Lahe  v.  Lake,  1  AVils.  313  :  Amb.  126, 
2yer  Buller,  J.  ;  Dougl.  40.  Evidence  is  admissible  to  show  that  onQ  prima  facie 
a  trustee,  takes  for  his  own  benefit :  Langfield  clem  Banton  v.  Hodges,  Lofft. 
230 ;  Doe  v.  Langton,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  680.  The  gift  of  a  legacy  in 
reversion  to  an  executor  does  not  necessarily  exclude,  but  only  raises  a  presump- 
tion against  his  taking  the  residue  beneficially,  and  if  there  is  no  express  decla- 
ration that  he  is  to  be  a  trustee,  but  only  circumstances  raising  a  presumption, 
parol  evidence  is  admissible  to  rebut  it :  Oldmaii  v.  Slater,  3  Sim.  84.  Where  a 
specific  bequest  was  given  in  the  will  to  the  executor  for  his  care  and  trouble, 
held  that  it  excluded  him  from  taking  the  residue  beneficially,  and  that  parol 
evidence  of  the  testator's  declarations,  after  the  making  of  the  will,  were  inad- 
missible :  Whitaker  v.  Tatham,  7  Bing.  (20  E.  C.  L.  R.)  628 ;  and  see  Foster  v. 
Munt,  1  Vern.  473  ;  and  Gibhs  v.  Rumsey,  2  V.  &  B.  294. 

^  Mallabar  v.  Mallahar,  Cas.  temp.  Talb.  79 ;  -Jarman  on  Wills,  c.  13. 

*  Roe  v.  Popham,  Dougl.  25 ;  Lord  Altham  v.  Lord  Anglesea,  Gilb.  Eq.  R.  16. 

^  Rer  Lord  Eldon,  in  The  Earl  of  Buckinghamshire  v.  Hobart,  3  SAvanst.  186. 
Where  a  tenant  for  life  of  a  settled  estate  purchased  encumbrances  and  had 
them  assigned  to  a  trustee,  and  purchased  the  remainder  and  had  it  conveyed, 
subject  to  existing  charges,  and  devised  the  estate  subject  to  the  charges  so 
purchased,  it  was  held  that  parol  evidence  was  admissible  to  show  that  the 
charges  were  merged:  Astleij  v.  Mills,  1  Sim.  298. 

«  Debeze  v.  Man,  2  Bro.  C.  C.  165  ;  Coote  v.  Botjd,  2  Bro.  C.  521.  Or,  as  it 
seems,  to  show  that  such  advancement  was  intended  as  an  ademption:  Rosewell 
v.  Bennett,  3  Atk.  77.  But  note,  that  the  intention  of  the  legacy  was  specified 
in  the  will ;  and  the  case  was  not  decided  on  that  ground ;  see  also  Ilooley  v. 
llatton,  ]  Bro.  C.  C,  390,  n.  Where  portions  are  provided  by  any  means  what- 
ever, and  the  parent  gives  a  provision  by  will  for  a  portion,  it  is  a  satisfaction 
prima  facie,  unless  there  be  circumstances  to  show  that  it  was  not  so  intended: 
per  Lord  Alvanley,  Uinchcliffe  v.  Hinchcliffe,  3  Ves.  jun.  516;  per  Lord  Eldon, 
in  Pole  v.  Lord  Somers,  6  Ves.  325.     The  question  there  was  as  to  satisfaction. 

•^  Ellixon  v.  C'ookson,  1  Ves.  jun.  100;   Clinton  v.  Hooper,   1  Ves.  jun.  173. 


PAROL    EVIDENCE    TO     REBUT    PRESUMPTION.  714 

In  the  case,  even  of  a  devise  of  lands,  it  was  formerly  held  that 
the  legal  implication,  as  to  the  revocation  of  the  will, 
*founded  upon  the  subsequent  marriage  of  the  testator,  and  L  ^J 
birth  of  a  child,  might  be  rebutted  bj  parol  evidence."  Lord  Mans- 
field observed,  "I  am  clear  that  this  presumption,  like  all  others, 
may  be  rebutted  by  every  sort  of  evidence.  There  is  a  technical 
phrase  for  it  in  the  case  of  executors  ;^  it  is  called  rebutting  an  equity." 
But  it  has  since  been  settled,  that  under  these  circumstances  the  will  is 
revoked  by  a  rule  of  law  independently  of  the  intention  of  the  party, 
and  consequently  that  all  evidence  of  such  intention  is  inadmissible.^ 

But  although  such  evidence  be  admissible  to  rebut  a  *pre- 
sumption  arising  from  the  operation  of  matter  in  pais  as  to    L   '  ■'^"J 
the  mtention  of  the  party  to  revoke,  it  is  otherwise  where  the  revo- 
cation is  by  act  of  law,  where  the  law  pronounces  upon  a  presump- 

But  those  made  at  the  time  of  the  will  are  the  most  important :  Trimmer  v. 
Bayne,  7  Ves.  508. 

*  Brady  v.  Cubitt,  Dougl.  30.  See  the  observations  on  this  case  in  Goodtitle 
V.  Otway,  2  11.  B.  516.  For  the  cases  in  which  an  alteration  in  circumstances 
amounted  to  an  implied  revocation  of  a  will,  see  Bac.  Ab.,  tit.  Wills  and  Testa- 
ments ;  Brown  v.  Thomjyson,  1  P.  Wms.  304 ;  Ljigg  v.  Lugg,  1  Ld.  Eaym,  441  ; 
Shepherd  v.  Shepherd,  Dougl.  31,  n.  Sir  D.  Evans  observes,  that  "the  allowin<T 
of  a  written  instrument  to  derive  a  construction  different  from  that  which  it 
would  naturally  import,  in  consequence,  not  of  any  relative  character  of  the 
subject  matter,  but  of  verbal  declarations,  cannot,  on  principle,  be  reconciled 
with  the  general  tenor  of  our  jurisprudence."  It  is  impossible  not  to  regret, 
in  common  with  that  learned  writer,  that  in  any  branch  of  cases,  particularly 
one  so  important  as  the  present,  the  uncertainty  and  vagueness  of  oral  testimony 
of  the  very  weakest  and  loosest  description  should  have  been  substituted  for 
the  certainty  of  a  written  document.  It  was  in  effect  to  give  to  oral  evidence  a 
greater  authority  than  the  written  evidence,  to  subject  solemn  and  authentic 
written  instruments  to  all  the  laxity  and  uncertainty  of  parol  evidence,  and  to 
render  titles  to  property  hazai-dous  and  precarious.  Hence,  by  7  Will.  IV.  and 
1  Vict.  c.  26,  no  will  made  after  1st  January  1838,  is  revoked  by  any  presump- 
tion of  intention  on  the  ground  of  an  alteration  in  circumstances,  save  marriage : 
ss.  18,  19.    See  tit.  Wills. 

f  An  executor  is  not  excluded  from  proof  of  the  testators  intention  that  he 
should  take  the  surplus,  by  the  circumstances  of  his  taking  a  reversionary  con- 
tingent interest:  Lyn7i  v.  Beaver,  1  Turn.  63.  Such  evidence,  however,  is 
admissible  only  for  the  purpose  of  supporting  the  apparent  effect  of  an  instru- 
ment ;  it  is  inadmissible  to  show  that  a  legacy  in  a  second  will  was  intended 
as  an  ademption  of  a  legacy  given  by  a  former  will :  Hurst  v.  Beach,  5 
Madd.  360. 

«  Marston  v.  Roe  dem.  Fox,  8  Ad.  &  E.  (35  E.  C.  L.  R.)  14  ;  in  Cam.  Seacc. ; 
and  Stat.  7  Will.  IV.  and  1  Vict.  c.  26,  s.  18,  supra,  note  (e). 


716  PROOFS. 

tion  juris  et  de  jure^  that  is,  where  the  presumption  of  hiw  is  so 
violent  that  it  does  not  admit  circumstances  to  be  set  up  to  repel  it.' 
Thus,  where  a  testator  devised  his  lands  to  B.^  and  afterwards,  upon 
his  marriage,  conveyed  them  by  lease  and  release  to  trustees,  to  other 
uses,  with  the  usual  limitations  in  marriage  settlements,  the  court,  on 
a  trial  at  bar,  refused  to  hear  parol  evidence  to  show  that  the  devisor 
meant  that  his  will  should  remain  in  force.'^ 

III.  As  original  and  i7idependent  evidence. — Having  thus  seen 
how  far  parol  evidence  is  admissible  to  contradict,  vary,  or  wholly 
subvert  a  written  instrument,  as  also,  on  the  other  hand,  to  establish, 
explain,  and  support  written  evidence,  it  remains,  in  the  third  place, 
to  consider  in  what  cases  parol  extrinsic  evidence  is  admissible  to 
prove  a  fact  by  virtue  of  its  own  weight  and  authority,  notwith- 
standing the  casual  existence  or  use  of  collateral  written  evidence  to 
prove  or  disprove  the  same  fact.^  What  has  been  already  said 
supplies,  indeed,  a  sufficient  test  ;  for  it  seems  that,  in  general,  the 
mere  circumstance  that  a  written  instrument  exists  which  may  be 
made  evidence  of  a  particular  transaction,  does  not  exclude  oral 
testimony  either  to  prove  or  disprove  the  fact,  unless  that  written 
instrument  be  by  law  constituted  the  authentic  and  sole  medium 
^^r'^rjn  of  proving  that  fact.'  The  importance  of  the  subject,  *how- 
ever,  renders  it  desirable  further  to  consider,  1st,  in  what 
instances  written  instruments  are  of  an  exclusive  nature ;  2dly, 
with  respect  to  what  J9ar^«(?s  and  to  what  facts. 

In  the  first  place,  written  evidence  has  an  exclusive  operation  in 

•"  See  Marston  v.  Roe  dem.  Fox,  and  tit.  Presumption,  post. 

*  See  2  H.  Bl.  522. 

^  GoodtUle  V.  Otwai/,  2  H.  B.  516. 

1  See  Grey  v.  Smithy es,  Burr  2273,  and  infra.  Still  less  does  the  existence  of 
a  deed  or  other  written  instrument  exclude  parol  evidence  as  to  a  collateral 
transaction  :  Fletcher  v.  Gillespie,  3  Bing.  (11  E.  C.  L.  R.)  635.  So,  in  the  case 
of  a  parol  agreement  to  do  repairs,  in  consideration  that  the  plaintiff  would  be- 
come tenant  to  the  defendant:  Seago  v.  Deane,  4  Bing.  (13  E.  C.  L.  R.)  459. 
So,  where  the  parties  to  an  indenture  of  charter-party  afterwards  agreed  by  parol 
for  the  use  of  the  ship,  ad  interim  :  White  v.  Parkins,  12  East  578,  supra,  p.  656, 
657,  note  (d). 

^  The  existence  of  a  paper  may  be  proved  by  parol  as  a  fact,  in  all  cases  where 
its  contents  arc  not  material  to  the  riglits  of  the  parties  or  where  the  party  prov- 
ing it  does  not  seek  to  avail  himself  of  its  contents  as  proof  of  any  fact  stated 
in  it,  or  of  an  obligation  created  or  discharged  by  it :  Gilbert  v.  Duncan,  5  Dutch. 
133  ;  Duncan  v.  Gilbert,  Ibid.  521  ;  Cramer  v.  Shriner,  18  Md.  140  ;  Silsbti7-y  v. 
Blamb,  26  111.  287. 


WRITTEN,     NOT    EXCLUDE     PAROL    EVIDENCE.  717 

many   instances,   by  virtue   of   peremptory  legislative  enactments.™ 
So  it  has  in  all  cases  of  written  contracts." 

So,  also,  in  all  cases  where  the  acts  of  a  court  of  justice  are  the 
subject  of  evidence.  Courts  of  record  speak  by  means  of  their 
records  only;  and  even  where  the  transactions  of  courts  which  are 
not,  technically  speaking,  of  record,  are  to  be  proved,  if  such  courts 
preserve  written  memorials  of  their  proceedings,  those  memorials 
are  the  only  authentic  means  of  proof  which  the  law  recognizes." 
And  it  seems  that,  in  general,  where  the  law  authorizes  any  person 
to  make  an  inquiry  of  a  judicial  nature,  and  to  register  the  pro- 
ceedings, the  written  instrumenf"  so  constructed  is  the  only  legiti- 
mate medium  to  prove  the  result. 

Thus,  as  has  been  seen,  parol  evidence  cannot  be  received  of  the 
declaration  of  a  prisoner  taken  before  a  magistrate  where  the  ex- 
amination has,  as  required  by  the  statute,  been  taken  in  writing.'' 
So,  the  official  return  *of  the  sheriff  to  a  writ  of  execution  p^r--.  o-i 
is  usually  conclusive  as  between  the  litigating  parties,  although 
not  as  between  them  and  himself.'^ 

But,  in  general,  public  and  authorized  documents,  whether  ap- 
pointed by  express  authority  of  law,  or  recognized  by  the  law  as  in- 
struments of  authority,  if  they  be  but  collateral  memorials  of  the 
fact,  possess  no  exclusive  authority  as  instruments  of  evidence. 
Thus,  although  the  entry  of  a  marriage  in  the  parish  registry,  made 

™  Tit.  Frauds,  Statute  of,  and  Wills. 

°  Supra ;  and  tit.  Assumpsit. 

°  Vide  tit.  Judgment,  Insolvent.  In  Bledstyn  v.  Sedgwick,  Ann.  304,  the 
court  refused  to  hear  parol  evidence  of  the  condemnation  of  a  ship  in  Carolina, 
a  copy  of  the  condemnation  Avhich  had  been  given  to  the  captain  having  been 
lost  at  sea. 

p  See  tit.  Judgment. 

■J  i?.  V.  Lambe,  supra,  2  Leach  559 ;  E.  v.  Jacobs,  lb.  310  ;  and  see  the  eases, 
2  Russ.  by  Greaves  876,  et  seq.  So,  additional  statements  made  by  a  prisoner 
before  a  magistrate,  and  not  contained  in  the  written  examination,  may  be  proved 
by  parol :  Venafra  v.  Johnson,  1  M.  &  Rob.  316.  What  a  prisoner  says  before 
he  may  know  the  charge  against  him  is  admissible  ;  interlineations  and  erasures 
in  a  confession  are  cured  by  the  attestation  ;  and  that  it  is  no  objection  that  it 
is  said  to  be  signed,  where  the  party  was  a  marksman  ;  and  a  voluntary  confes- 
sion, taken  before  the  conclusion  of  the  evidence  against  the  prisoner,  may  be 
given  in  evidence  on  the  parol  statement  of  the  clerk,  refreshing  his  memory  by 
the  paper:  R.  v.  Bell,  5  C.  &  P.  (24  E.  C.  L.  R.)  162;  questioning,  R.  v.  Fagg, 
4  C.  &  P.  (19  E.  C.  L.  R.)  566 ;  Jeans  v.  Wheedon,  2  M.  &  Rob.  486.  But  parol 
evidence  may  be  given  of  the  same  declarations  made  by  the  prisoner  at  other 
times  :  WCarthi/s  case,  M'Nally  on  Ev.  45. 

'  Gijfford  V.  Woodgate,  11  East  297. 


718  PROOFS. 

according  to  the  Marriage  Act,  be  evidence  of  the  marriage,  it  does 
not  exclude  the  parol  evidence  of  any  witness  who  can  prove  the  fact 
of  marriage.  So,  although  public  printed  proclamations  of  govern- 
ment, gazettes,  public  books,  official  returns,  and  other'  documents  of 
authority,  are  admissible  in  evidence  to  prove  particular  facts,  they 
do  not  exclude  parol  evidence.  The  principle  applies  in  general,  as 
it  seems,  where  the  document  contains  a  mere  subsequent  memorial 
and  recognition  of  the  fact. 

A  receipt  for  money,  it  has  been  held,  is  not  conclusive  evidence 
against  the  person  who  gives  it,  that  he  has  actually  received  the 
money.'  Thus,  upon  the  failure  of  an  annuity  deed  for  want  of  a 
memorial,  upon  an  action  brought  by  the  plaintiff  against  the  two 
grantors,  to  recover  the  consideration  paid,  one  of  the  defendants, 
who  was  a  surety  only,  was  permitted  to  show,  notwithstanding  his 
having  signed  a  receipt  for  the  money,  jointly  with  the 
*-  -^  *other  defendant,  the  principal,  that  he  had  never  in  fact 
received  the  money."  ^ 

'  Tit.  Written  Evidence. 

*  And  may  therefore  be  explained  or  contradicted  by  parol :  Graves  v.  Key,  3 
B.  &  Ad.  (23  E.  C.  L.  R.)  318.  So,  a  receipt  in  full  of  all  demands  ;  but  see 
Alner  v.  George,  1  Camp.  392,  and  Barmston  v.  Robins,  4  Bing.  (13  E.  C.  L. 
R.)  11. 

"  Stratton  v.  Rastall  and  another,  2  T.  R.  366  ;  and  see  The  Attorney-General 
V.  Randall  and  others,  2  Eq.  C.  Abr.  742  -,  where  although  a  receipt  had  been 
signed  by  three  trustees,  the  Lord  Chancellor  decreed  that  only  the  one  who  had 
received  the  money  should  be  answerabfe  for  it ;  but  see  Rowntree  v.  Jacob,  2 
Taunt.  141  ;  also,  1  Sid.  44 ;  1  Lev.  43 ;  Co.  Litt.  by  Harg.  and  Butler  373 ; 
Latour  v.  Bland,  2  Stark.  C.  (3  E.  C.  L.  R.)  382. 

^  Parol  evidence  is  admissible  to  explain  or  even  contradict  receipts :  Johnson 
v.  Weed,  9  Johns.  310;  Badger  v.  Jones,  12  Pick.  371  ;  Baugh  v.  Brassfield,  5  J. 
J.  Marsh.  79  ;  Southwick  v.  Hayden,  7  Cow.  334 ;  Giddings  v.  Munson,  4  Vt. 
308  ;  Whitbeck  v,  Whitbeck,  9  Cow.  266  ;  Brooks  v.  White,  2  Mete.  283  ;  mim- 
phries  v.  McGrmv,  5  Pike  61  ;  Jo7ies  v.  Patterson,  1  W.  &  S.  321;  Pettus  y. 
Roberts,  6  Ala.  811 ;  Huston  v.  Becknell,  4  Mo.  39  ;  Wayland  v.  Moseley,  5  Ala. 
430;  Jones  v.  Ward,  10  Yerg.  160;  Behee  v.  Moore,  3  McLean  387;  Hogan  v. 
Reynolds,  8  Ala.  59  ;  Steamboat  Missouri  v.  Webb,  9  Mo.  193  ;  McKeagg  v.  Cal- 
lahan, 13  Ala.  828  ;  Elston  v.  Kennicott,  52  111.  272;  Hammond  v.  Hannin,  21 
Mich.  374 ;  Stackely  v.  Pierce,  28  Tex.  328  ;  Dunagan  v.  Dunagan,  38  Ga.  554 ; 
Winchester  v.  Grosvenor,  44  111.  426  ;  Dunn  v.  Piper,  20  La.  Ann.  276  ;  Carr  v. 
Miner,  42  111.  179  ;  Rand  v.  Scojield,  43  Ibid.  167  ;  Elston  v.  Kennicott,  46  Ibid. 
187  ;  Burwell  v.  Pioneer,  37  N.  Y.  312  ;  Colburn  v.  Lansing,  46  Barb.  37  ;  Elder 
V.  Ho(jd,  39  111.  533  ;  James  v.  Bleigh,  11  Allen  4;  Illinois  Ins.  Co.  v.  Wulf,  37 
111.  354.  Book  entries  are  not  contracts,  but  memoranda  ;  and  are  not  conclu- 
sive as  evidence  but  are  subject  to  explanation  :  Swift  v.  Pierce,  13  Allen  136. 

The  taking  of  a  receipt  on  payment  of  money  does  not  preclude  proof  of  such 


PAROL     EVIDENCE  —  RECEIPT  —  CONFESSION.  719 

In  the  case  of  Wilson  v.  PouUer,  which  is  very  briefly  reported,'' 
it  is  stated  merely  that  a  defendant  in   trover  was  charged  with  his 

=^  Str.  794.  In  Rniolmul  v.  Ashhy,  Ry.  &  M.  (21  E.  C.  L.  R.)  231  ;  it  was  held 
that  admissions  made  by  a  party  on  his  examination  before  commissioners  of 
bankrupts,  and  which  were  material,  though  not  contained  in  the  written  exami- 
nation, might  be  proved  ;  and  see  Venafra  v.  Johnson,  supra,  p.  717,  n.  [q). 

payment  by  other  evidence  :  Berry  v.  Berry,  2  Harris.  440.  The  rule  that  parol 
evidence  is  inadmissible  to  vary  the  terms  of  a  written  instrument,  does  not 
apply  to  a  writing  which  is  merely  evidence  of  a  fact,  and  not  of  a  contract  or 
right:  McCrea  v.  Purmort,  16  Wend.  460.  Parol  evidence  may  be  given  of  the 
payment  of  money  or  delivery  of  goods  notwithstanding  a  receipt  has  been 
given:  Wiggins  v.  Pryor,  3  Port.  630;  Dana  v.  Boyd,  2  J.  J.  Marsh.  587- 
Parol  evidence  is  admissible  to  explain  receipts:  Hawley  v.  Bader,  15  Cal.  44. 
A  receipt  for  the  payment  of  money  containing  an  agreement,  condition  or  stipu- 
lation between  the  parties,  is  in  the  nature  of  a  contract,  and  is  not  liable  to  be 
varied  by  parol:  Senceshox  v.  McGrude,  6  Minn.  484.  A  writing  that  is  both  a 
receipt  and  a  memorandum  of  agreement  is  conclusive  as  to  the  agreement,  but 
the  receipt  of  the  property,  although  that  be  the  subject-matter  of  the  agreement, 
may  be  disproved  :  Dale  v.  Evans,  14  Ind.  288  ;  The  Tuskar,  Sprague  71 ;  Sut- 
ton V.  Kettell,  Ibid.  309. 

So  the  recital  in  a  deed  of  the  payment  of  the  consideration  money  may  be 
contradicted  or  explained  :  Shepherd  v.  Little,  14  Johns.  210  ;  Morn  v.  Shattuck, 
4  N.  H.  229  ;  Wilkinson  v.  Scott,  17  Mass.  249  ;  Straicbridge  v.  Cartledge,  7  W. 
&  S.  394  ;  Mead  v.  Steger,  5  Port.  498  ;  Burbank  v.  Gould,  3  Shepl.  118 ;  Saun- 
ders V.  Uendrix,  5  Ala.  224 ;  Clapp  v.  Tirrell,  20  Pick.  247 ;  Lirgun  v.  Hender- 
son, 1  Bland.  236  ;  Deloach  v.  Turner,  6  Rich.  117.  The  true  consideration  of 
a  deed  may  be  shown  by  parol :  Morris  Canal  and  Banking  Co.  v.  Eyerson,  3 
Dutch.  457;  Holbrook  v.  Holbrook,  30  Vt.  432  ;  Henry  v.  Henry,  11  Ind.  236; 
Galivay''s  Appeal,  10  Cas.  242  ;  Clinton  v.  Estes,  20  Ark.  216  ;  Gordon  v.  Gor- 
don, 1  Mete.  (Ky.)  285;  Reynolds  v.  Vilas,  8  Wis.  471  ;  Andrews  v.  Andrews, 
12  Ind.  348  ;  Jones  v.  Jones,  Ibid.  389 ;  Ibrey  v.  Vanderhoqf,  15  Wis.  397  ;  Law- 
ton  V.  Buckingham,  15  Iowa  22 ;  Eby  v,  Wolcott,  4  Allen  506 ;  Kamler  v.  Fergu- 
son, 7  Minn.  442;  Speer  v.  Speer,  1  McCar.  240  ;  Buckley's  Appeal,  12  Wright 
491  ;  Gibson  v.  Fifer,  21  Tex.  260  ;  Rabsuhl  v.  Lack,  35  Mo.  316  ;  McMahan  v. 
Stewart,  23  Ind.  590  ;  Miller  v.  Goodwin,  8  Gray  542 ;  Paget  v.  Cook,  1  Allen 
522;  Landman  \.  Ingram,  A9  Mo.  212;  Pierce  v.  Brew,  4S  Vt.  292;  Booth  y. 
Hynes,  54  111.  363 ;  Medvidck  v.  Meyer,  46  Mo.  600  ;  Boyce  v.  Wilson,  32  Md. 
122 ;  Balton  v.  Jacks,  6  Rob.  166  ;  Whitaker  v.  Garnett,  3  Bush  402  ;  Bassett  v. 
Bassett,  55  Me.  127  ;  Bowser  v.  Craviner,  6  P.  F.  Smith  132;  Lewis  v.  Brew- 
ster, 7  Ibid.  410;  Pope  v.  Chafee,  14  Rich.  (Eq.)  69  ;  Coioan  v.  Cooper,  41  Ala. 
187;  Rhine  w.  Ellen,  36  Cal.  362;  Perry  v.  Central  R.  R.  Co.,  5  Cald.  138; 
Pnriaton  v.  Northern  III.  R.  R.  Co.,  46  111.  297 ;  Bell  v.  Utley,  17  Mich.  508  ; 
Pullman  v.  Ilatley,  24  Iowa  425  ;  Hildreth  v.  O'Brien,  10  Allen  104  ;  Stackpole 
V.  Bobbins,  47  Barb.  212;  Peck  v.  Vandenburg,  30  Cal.  11  ;  Hendrick  v.  Crow- 
ley, 31  Ibid.  471 ;  Patterson  v.  Fowler,  22  Ark.  396  ;  Finn  v.  Hempstead.  24  Ibid. 
Ill ;  Walcott  V.  Ronalds,  2  Rob.  617  ;  Wheeler  v.  Billings,  38  N.  Y.  263  ;  Ros- 
bou  V.  Peck,  48  Barb.  92 ;   Cunningham  v.  Dwyer,  23  Md.  219  ;  Engleman  v. 


719  PROOFS. 

confession  taken  before  commissioners  of  bankrupts,  and  that  the 
Chief  Justice  refused  to  let  the  defendant  explain  it  by  parol  evi- 
dence. It  is  not  stated  in  what  way  the  defendant  proposed  to  ex- 
plain the  document ;  and  it  would  not  be  safe  to  rely  much  on  so  very 
loose  a  report. 

In  the  common  case  of  a  confession  taken  before  a  magistrate,  on 
a  charge  of  felony,  the  practice  is  for  the  prosecutor  to  prove  by  evi- 
dence that  the  written  document  produced  is  a  faithful  account  of  the 
prisoner's  statement ;  upon  principle,  therefore,  it  scarcely  admits  of 
doubt  that  the  prisoner  is  at  liberty  to  meet  such  evidence  by  con- 
trary testimony,  and  to  show  that  the  written  instrument  is  inaccu- 
rate. The  statutes^  which  authorize  the  magistrate  to  take  the  exami- 
nation of  prisoners,  do  not  give  them  an  exclusive  force ;  and  their 
admissibility  and  operation  as  evidence  seem  to  stand  upon  the  same 
footing  with  any  other  admissions  at  common  law,  which,  in  such  in- 
stances, are  usually  inconclusive.''  And  it  seems  that,  in  general, 
where  a  document,  such  as  a  letter,  not  being  matter  of  compact  and 
agreement,  is  given  in  evidence  as  *an  admission  by  the 
•-  "  -^  adversary,  the  latter  may  adduce  evidence  to  show  that  it 
originated  in  mistake,  or  to  explain  it  by  circumstances.'* 

In  an  action  brought  by  bankers  to  recover  back  money  paid  on  a 
check  purporting  to  be  drawn  by  the  defendant,  but  alleged  to  be  a 
forgery,  and  which  was  the  fact  in  issue,  it  was  held,  that  minutes  of 
the  defendant's  examination  on  a  charge  made  against  a  party  as 
having  forged  a  check,  were  receivable,  although  he  afterwards  signed 
the  regular  deposition.'' 

y  7  Geo.  IV.  c.  64  ;  11  &  12  Vict.  c.  42 ;  and  see  tit.  Admissions. 
'  Tit.  Admissions. 

»  Tit.  Admissions  ;  and  see  Holsten  v.  Jumpson,  4  Esp.  C.  189 ;  Macheath  v. 
Haldimand,  1  T.  R.  182. 
*•  Williams  v.  Woodward,  4  C.  &  P.  (19  E.  C.  L.  R.)  346. 

Craig,  2  Bush,  424  -,  Vail  v.  McMillan,  17  Ohio  St.  617  ;  Driirt/  v.  Tremont  Co., 
13  Allen  168.  A  party  may  show  by  evidence  dehors  an  instrument  in  writing 
what  was  the  time  of  its  execution,  explain  and  make  certain  its  indefinite  stipu- 
lations, and  the  consideration  of  it :  Perry  v.  Smith,  34  Tex.  277  ;  Field  v.  Mun- 
son,  47  N.  Y.  221 ;  Ins.  Co.  v.  Thorp,  22  Mich.  146;  Robinson  v.  United  States, 
13  Wall.  363;  Willmering  v.  McGaitghey,  30  Iowa  205  ;  Goodrich  v.  Stevens,  5 
Lans.  230.  The  true  date  of  a  deed  is  the  time  of  delivery,  and  may  be  shown 
by  purol,  though  a  diilercnt  date  is  upon  the  paper:  Jiassellv.  Carr,  3S  Ga. 
459. 

A  recital  of  the  consideration  in  a  deed  is  prima  facie  evidence  in  an  action 
a;!;aiii.st  the  grantor  in  a  suit  for  breach  of  covenant ;  but  it  is  evidence  of  the 
slightest  kind  :  Mowrey  v.  Vandliny,  9  Mich.  39. 


PAROL     EVIDENCE  —  INDEPENDENT     FORCE.  720 

2dlj.  Next,  with  respect  to  the  'parties,  and  the  particular  facts 
which  the  instrument  recites.  The  instrument  offered  in  evidence, 
whether  record,  deed,  or  simple  contract,  is  offered  either  as  between 
the  same  parties,  or  where  either  one  or  both  are  different.  Even 
where  both  parties  are  the  same,  it  frequently  happens  that  the 
instrument  will  not  operate  as  an  estopj^el,  unless  it  be  specially 
pleaded  as  such  f  and  if  it  has  not  been  so  pleaded,  parol  evidence 
of  the  fact  is  usually  admissible  in  contradiction  of  the  written  instru- 
ment. 

In  the  next  place,  even  where  a  record  or  deed  exists,  which  is 
conclusive  upon  the  parties,  it  is  not  always  conclusive  upon  all  p)oints. 

Thus,  evidence  is  admissible  to  prove  that  a  deed  was  executed,  or 
a  bill  of  exchange  made,  at  a  time  different  from  that  of  the  date,**  or 
that  a  party  in  whose  name  a  *contract  for  the  sale  of  goods 
was  made  was  the  agent  of  another.®     For  the  same  reason,    ^     "'J 
a  dormant  partner  may  be  charged  on  a  contract  made  by  the  osten- 

°  Tit.  Estoppel. 

^  The  plaintiff  may  declare  on  a  bond  bearing  date  on  one  day,  and  prove  a 
delivery  on  another  day  {Goddard's  case,  2  Rep.  4,  b.),  or  allege  a  deed  to  have 
been  delivered  on  a  day  different  from  that  on  which  it  bears  date  :  Hall  v. 
Cazenove,  4  East  477  ;  Stone  v.  Bale,  3  Lev.  348 ;  Styles  v.  Wardle,  4  B.  &  C. 
(10  E.  C.  L.  E.)  908.  Parol  evidence  is  admissible  to  show  that  land  described 
in  a  deed  as  meadow  was  not  meadow,  for  it  is  not  the  essence  of  the  deed,  but 
mere  matter  of  description  :  Skipicith  v.  Green,  Str.  610.  Or  that  land  de- 
scribed as  containing  five  hundred  acres  does  not  contain  so  many ;  s.  c.  Bac. 
Ab.,  Pleas,  (I.  11).  Where  a  deed  contains  a  generality  to  be  done,  as  to  per- 
form all  agreements  set  down  by  A.,  1  Rol.  872,  P. ;  to  carry  away  all  the  marl 
in  close  B. :  Ibid.  ;  to  release  all  his  right  in  C. :  Ibid. ;  2  Cowp.  600  ;  he  is  not 
estopped  from  denying  such  agreements,  &c. :  Com.  Dig.,  Estoppel,  A.  2.  A 
latitat  alleged  to  have  been  issued  on  a  particular  day  after  term,  may  be 
proved  to  have  been  so  issued,  though  tested  of  the  preceding  term  :  Walburgh 
Saltonstall,  Vent.  362.  If  a  written  acknowledgment  to  take  a  case  out  of  the 
Statute  of  Limitations  have  no  date,  parol  evidence  may  be  given  to  prove 
when  it  was  written  :  Edmunds  v.  Downes,  2  C.  &  M.  459.  So,  in  the  case  of  a 
ratification  of  a  contract  entered  into  in  infancy:  Hartley  v.  Wharto7i,  11  A.  & 
E.  (39  E.  C.  L.  R.)  934;  and  of  a  written  promise  made  after  bankruptcy  to 
pay  a  debt  barred  by  certificate  :  Lobb  v.  Stanley,  5  Q.  B.  (48  E.  C.  L.  R.)  574. 

«  JVilson  V.  Hart,  7  Taunt.  (2  E.  C.  L.  R.)  295.  That  is  for  the  purpose  of 
charging  the  principal,  not  of  discharging  the  agent :  see  Higgins  v.  Senior,  8 
M.  &  W.  834,  supra,  p.  665.  So  a  purchaser  of  land,  having  made  the  pur- 
chase in  the  name  of  another,  may  show  that  he  (the  purchaser)  paid  for  it,  in 
order  to  raise  a  resulting  trust:  2  Vern.  366.  Where  parol  evidence  was 
offered  (to  raise  an  equity)  that  a  pension  granted  by  the  Crown  absolutely  was 
in  trust  for  the  plaintiff,  which  the  defendant,  by  his  answer,  denied,  the  evi- 
dence was  rejected  by  Lord  Thurlow  :  Fordyce  v.  Willis,  3  Bro.  C.  C.  577. 


721  PROOFS. 

sible  partner  in  their  own  names/  And  even  in  the  case  of  records, 
which  are  conclusive  as  far  as  regards  their  substance,  averments  and 
proofs  may  be  received  to  contradict  them  as  to  time  and  place  and 
many  other  particulars.^ 

The  reason  is,  that  in  the  case  of  the  record,  the  points  of  variance 
would  not  have  been  considered  to  be  material  at  the  trial,  and  there- 
fore the  evidence  does  not  in  eifect  contradict  the  record ;  and  that  in 
the  case  of  deeds  or  other  agreements  it  was  not  the  intention  of  the 
contracting  parties  to  bind  themselves  precisely  as  to  such  particulars, 
such  instruments  being,  for  the  sake  of  convenience,  frequently 
executed  on  days  diiFerent  from  those  on  which  they  bear  date,  and 
r*7ooi  commercial  agreements  being  as  frequently  *made  on  behalf 
'-     "^  -'    of  a  principal  in  the  name  of  an  agent. ^ 

The  parties  to  a  written  agreement  are  not,  in  general,  precluded 
from  proving  facts  consistent  with  the  agreement,  although  not  ex- 
pressed in  it.  Where  the  written  agreement  was,  that  Maxwell 
should  purchase  of  Sharp  .£2000  stock,  it  was  held  that  the  plaintiff, 
3Iaxwell,  might  give  in  evidence  a  parol  agreement  to  buy  X2000 
stock  (which  belonged  to  Sharp  and  Abbott,  but  stood  in  the  name  of 
Sharp)  of  Sharp  and  Abbott,  the  parol  being  consistent  with  the 
written  agreement.' 

And  as  between  the  parties  to  a  deed,  or  those  who  claim  in  privity, 
evidence  is  admissible  to  show  the  purpose  and  intention  of  executing 
the  instrument,^  provided  it  be  perfectly  consistent  with  the  legal 
operation  of  the  instrument,  and  not  inconsistent  with  its  express 

^Beckham  v.  Brake,  9  M.  &  W.  79  ;  11  M.  &  W.  315. 

*  See  Stark.  Crim.  Pleading,  2d  edit.  325  ;  and  tit.  Judicial  Instruments. 
^  Tit.  Agent  ;  tit.  Partners  ;  and  tit.  Vendor  and  Vendee. 

*  Maxwell  v.  Sharp,  Say.  187.  Where  one  partner  deposited  his  own  deeds 
under  a  written  memorandum  "  as  a  security  in  the  dealings  which  the  party 
had  with  him,"  held,  that  evidence  to  show  that  the  dealings  alluded  to  were 
partnership  transactions,  was  admissible,  and  established  the  lien  for  payments 
made  on  behalf  of  the  firm  :  Chuck  v.  Freen,  M.  &  M.  (22  E.  C.  L.  R.)  259 ;  s. 
c,  contra,  2  Glyn.  &  J.  246  ;  see  Turner  v.  Deane,  3  Ex.  837.  So,  a  release  re- 
citing that  disputes  subsisted  between  A.  and  B.,  and  that  it  had  been  agreed 
that  to  put  an  end  to  them  B.  should  pay  A.  money,  and  each  should  execute  a 
release  to  the  other,  and  the  release  given  was  of  all  actions  whatever,  and  A. 
afterwards  sued  B.  and  C.  for  a  joint  cause  of  action,  parol  evidence  was  ad- 
mitted that  there  were  mutual  actions  between  A.  and  B.  other  than  that  of  A. 
against  B.  and  C. :  Simons  v.  Johnson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  175. 

'  Proof  that  an  agreement  offered  in  evidence  against  its  signers  was  to  be 
held  in  the  nature  of  an  escrow  is  admissible  :  Beall  v.  Poole,  27  Md.  645. 


PAROL     EVIDENCE  —  INDEPENDENT    FORCE.  722 

terms.  Thus,  in  the  case  of  Mllhourn  v.  Ewart  and  others,^  -where 
a  man,  in  contemplation  of  marriage,  executed  a  bond  to  his  intended 
wife  (the  plaintiff,)  conditioned  for  the  payment  of  money  by  the 
heirs  or  executors  of  the  obligor  to  the  plaintiff,  at  the  expiration  of 
twelve  calendar  months  from  and  after  the  death  of  the  obligor,  and 
to  an  action  on  the  bond  against  the  heirs-at-law  of  the  deceased 
husband,  they  pleaded  the  marriage,  &c.,  and  the  plaintiff  replied 
*the  fact  that  the  bond  was  made  in  contemplation  of  a  r^jt-Qq-i 
marriage  between  the  defendant  and  the  obligor,  and  with 
intent  tliat,  in  case  the  marriage  should  take  place,  and  the  plaintiff 
should  survive  her  husband,  the  plaintiff  should  have  the  benefit  of 
the  bond,  it  was  held  that  those  facts  might  well  be  averred,  being 
perfectly  consistent  with  the  bond. 

It  has  already  been  seen  that,  as  between  parties  to  a  deed,  evi- 
dence of  a  further  consideration  than  that  expressed  in  the  deed  is 
admissible  where  the  evidence  does  not  contradict  the  deed.^ 

Except  in  cases  where  the  Statute  of  Frauds,  or  other  law,  requires 
a  written  agreement,  parol  evidence  may  be  admissible,  in  conjunc- 
tion with  written,  to  prove  the  agreement.  Thus,  if  an  agreement 
be  reduced  into  writing,  parol  evidence  is  admissible  to  show  that  the 
parties,  without  writing,  afterwards  varied  the  terms;™  for  here  the 
evidence  is  offered,  not  to  vary  the  terms  of  an  instrument  which 
stands  admitted  as  the  real  record  of  the  intention  of  the  parties,  but 
is  offered  consistently  with  the  existence  of  the  instrument,  and  con- 
fessing that  it  does  so  exist,  in  order  to  avoid  its  effect  by  proof  of  a 
new  agreement,  adopting  the  old  one,  either  wholly  or  in  part,  but 
annexing  certain  additional  terms. 

It  has,  indeed,  already  been  seen,  that  previous  or  contemporary 
declarations  are  not  admissible  to  vary  the  terms  of  a  written  agree- 
ment; where,  however,  the  nature  of  the  subject-matter  does  not  re- 
quire the  agreement  to  be  *in  writing,  although  a  presump-  r*794-| 
tion  arises,  in  the  absence  of  proof  to  the  contrary,  that  the 

•^  5  T.  R.  381. 

'  Supra,  p.  659.  So  a  deed  which  recites  a  pecuniary  consideration  only,  may 
be  shown  to  have  been  founded  on  a  consideration  of  marriage :  Villers  v.  Bea- 
mont,  supra,  p.  660.  Where  premises  were  purchased  at  a  sale  in  different  lots 
by  the  plaintiff  and  defendant,  and  in  their  deeds  the  premises  were  described 
only  by  reference  to  the  then  tenants  ;  held,  that  a  handbill  exhibited  at  the  sale 
was  admissible,  not  as  controlling,  but  explaining  and  applying  the  deed,  and 
showing  what  was  then  in  the  tenants'  occupation :  Murley  v.  McDormott,  8  A. 
&  E.  (35  E.  C.  L.  R.)  138. 

"  Supra,  p.  655. 


724  PROOFS. 

.    .         .      .       • 

parties  expressed  in  writing  the  wJiole  of  their  intention  in  respect  of 

the  subject-matter,  and  intended  the  written  terms  to  operate  as  an 
agreement,  yet  that  presumption  may,  it  seems,  be  rebutted  by  express 
evidence  that  what  was  so  written  was  intended  as  a  mere  memoran- 
dum of  one  part  or  branch  only  of  a  more  general  agreement,  and 
was  not  intended  to  operate  absolutely  and  unconditionally,"  or  it 
may  be  shown  that  a  parol  contract  was  made  independently,  wholly 
collateral  to  and  distinct  from  a  written  one  made  at  the  same  time. 
In  such  cases,  the  parol  evidence  is  used,  not  to  vary  the  terms  of  the 
written  instrument,  but  to  show  either  that  it  is  inoperative  as  an  entire 
and  independent  agreement,  or  that  it  is  collateral  and  irrelevant. 

Where  a  statute  requires  the  agreement  to  be  in  writing,  the  case 
admits  of  a  very  different  consideration ;  there  the  oral  and  written 
terms  could  not  be  incorporated ;  and  it  was  formerly  doubted, 
whether  the  previously  written  agreement  would  be  discharged  and 
revoked    by  a    subsequent    oral    agreement."      It   is   however    now 

"  See  Jeffrey  v.  MaUon,  1  Starkie,  C.  (2  E.  C.  L.  R.)  267.  The  action  was  in 
assumpsit  for  not  taking  proper  care  of  a  horse.  A  written  memorandum  was 
made  upon  hiring  a  horse,  "  six  weeks,  at  two  guineas — W.  W."  (the  hirer)  ; 
Lord  Ellenborough  held  that  evidence  was  admissible  to  show  that  at  the  time 
of  hiring  it  was  expi-essly  stipulated,  that  as  the  horse  was  used  to  shy^  the 
hirer,  if  he  took  him,  should  be  liable  to  all  accidents.  In  many  instances,  the 
terms  reduced  to  writing  may  constitute  but  a  small  part  of  the  real  contract. 
Suppose  A.  to  let  a  house  by  parol  to  B.  for  two  years,  and  that  at  the  time  of 
the  parol  agreement  a  stipulation  as  to  the  furniture  is  made,  for  convenience 
of  calculation,  in  writing,  and  that  at  the  foot  of  the  account  is  written  "  B. 
to  take  the  furniture  at  the  above  valuation,"  it  would  be  difficult  to  con- 
tend that  B.  would  be  bound  to  buy  the  furniture,  although  A.  refused  to 
let  him  occupy  the  house,  and  that  he  would  be  concluded  by  the  written  part 
of  the  engagement  from  showing  the  real  condition  annexed  to  it :  see  per 
Cur.  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  64  ;  Allen  v.  Pink,  4  31. 
&  W.  140. 

°  An  agreement  to  waive  a  contract  for  the  purchase  of  lands  is  as  much  an 
agreement  concerning  lands  as  the  original  contract  is,  and  it  was  therefore 
thought  must  be  in  writing :  see  per  Lord  Ilardwicke,  Buckhouse  v.  Crosby,  2 
Eq.  C.  Abr.  32 ;  Bell  v.  Howard,  9  Mod.  302.  But  unless  it  be  sought  to  charge 
the  party  on  the  altered  agreement  this  is  not  so,  for  the  statute  only  requires 
writing  in  that  case.  In  Parteriche  v.  Powlett,  2  Atk.  384,  Lord  Ilardwicke  is 
reported  to  have  said,  that  to  add  anything  to  an  agreement  in  writing,  by  ad- 
mitting parol  evidence  which  would  affect  land,  is  not  only  contrary  to  the  Sta- 
tute of  Frauds,  but  to  the  rule  of  common  law  before  the  statute  was  in  being; 
yet,  as  mere  parol  agreements  concerning  land  were  operative  before  the  statute, 
there  seems  to  have  been  no  reason  why  a  written  contract  should  not  have  been 
varied  by  a  subsequent  oral  agreement  when  it  related  to  lands,  as  well  as  in 
any  other  case :  see  Clinan  v.  Cooke,  1  Sch.  &  Lef.  35. 


PAROL    EVIDENCE    BETWEEN     STRANGERS,    ETC.        725 

*settled,  that  in   cases   which   are   within  the  scope  of  the    r._„_-, 

...  I     i  2iO  I 

Statute  of  Frauds,  parol  evidence  is  admissible  to  show  a    •-         -• 

dispensation  with  the  performance  of  part  of  the  original  contract, 

such  as  an  agreed  substitution  of  other  days  than  those  stated  in  the 

contract  for  the  delivery  of  goods  sold,''  or  even  to  show  that  it  has 

been  totally  rescinded.*"     And  where  a  written  contract  states  .a  time 

and  place  for  the  delivery  of  goods,  an  alteration  as  to  the  time  not 

in  writing,  though  effectual  to  discharge,  is  not  valid  to  charge  the 

the  party,  unless  it  be  in  writing." 

Next,  where  one  of  the  contending  parties  was  not  a  party  to  the 
record  or  other  instrument.  It  has  been  seen,  that  in  some  instances 
where  the  proceeding  is,  as  it  is  *technically  termed,  in  rem,  p^^^^-. 
the  judgment  or  decree  is  final  and  conclusive  upon  all.^  ^  -'J 
Where,  however,  the  record  is  admissible  but  not  conclusive  evidence, 
even  parol  evidence  seems  to  be  admissible  to  prove  the  fact  in  con- 
tradiction of  the  record. 

Thus,  upon  an  indictment  against  an  accessory  to  a  felony  although 
the  record  of  the  conviction  of  the  principal  be  admissible  evidence  to 
prove  the  fact,  yet,  as  it  is  not  conclusive,  the  accessory  is  entitled  to 
adduce  any  legal  evidence  in  contradiction  of  the  fact  stated  on  the 
record.' 

Although  there  are  many  instances  in  which  a  deed  or  agreement 
between  others  is  evidence  for  or  against  a  stranger,  yet  it  seems  to  be 
a  general  rule,  that  in  all  these  cases  parol  evidence  of  the  fact  would 
still  be  admissible. 

Thus,  in  the  case  of  The  King  v.  Scammonden,''^  already  cited,  the 

P  Cvjf  V,  Penn,  1  M.  &  S.  21  ;  Warren  v.  Stagg,  cited  in  Littler  v.  Holland, 
3  T.  R.  591;  Thresh  \.  Rake,  1  Esp.  C.  53,  cor.  Lord  Kenyon ;  where,  in  a 
written  agreement,  an  appraisement  on  a  given  day  was  specified  as  a  condition 
precedent,  oral  evidence  of  an  enlargement  by  consent  was  admitted :  cor.  Lord 
Kenyon ;  but  see  Snowball  v.  Vicaris,  Bunb.  175.  In  CvJf  v.  Penn,  1  M.  &  S. 
26,  Lord  Ellenborough  observed,  "  If  this  agreement  had  been  vai'ied  by  parol, 
I  should  have  thought,  on  the  authority  of  Meres  v.  Ansell,  3  Wils.  275,  that 
there  had  been  strong  ground  for  the  objection."  But  Meres  v.  Ansell  was 
decided  wholly  upon  the  general  principle  of  the  admissibility  of  a  cotemporary 
parol  agreement  to  the  very  terms  of  a  written  one. 

0  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  66. 

^  Marshall  v.  Lynn,  6  M.  &  W.  109  ;  supra,  p.  663. 

*  Supra,  tit.  Judicial  Instruments  :  and  vide  infra,  tit.  Settlement. 

'  Tit.  Accessory. 

°  3  T.  R.  474.  So  in  R.  v.  Llangunnor,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  916  ;  the 
deed  of  apprenticeship  stating  the  money  to  have  been  paid  by  /.  M.,  evidence 
was  admitted  to  show  that  it  was  in  part  pa»ish  money ;  and  see  R.  v.  Wickham, 


726  PROOFS. 

inhabitants  of  a  parish  were  permitted  to  show  that  X30  was  in  fact 
paid  as  the  consideration  upon  the  sale  of  an  estate,  although  the 
deed  of  conveyance  between  the  parties  specified  X28  as  the  conside- 
ration. Here  the  question  was  as  to  the  value  actually  given  for  the 
estate;  and  although  the  agreement  was  prtmd  facie  evidence  as  to 
the  fact,  and  although  the  parties  themselves  might  have  been  bound 
by  their  own  representation  of  the  transaction,  it  was  not  binding 

„•    _    upon  strangers   to  the  exclusion  of  the  *real  fact.     In  the 
r*7271  .  , 

L  -^  case  of  The  King  v.  Laindon,"  the  question  as  to  a  settle- 
ment was,  whether  the  parties  intended  to  contract  as  master  and 
servant,  or  as  master  and  apprentice;  the  written  agreement  was  as 
follows:  I,  J.  M.,  do  hereby  agree  with  J.  (7.,  to  serve  me  three 
years,  to  learn  the  business  of  a  carpenter,  the  first  year  to  have  la. 
2d.  per  day,  the  second  year  to  have  Is.  Qd.  per  day,"  &c.  In  addi- 
tion to  this,  J.  C.  was  admitted  to  prove,  at  the  trial,  that  at  the  time 
of  signing  the  agreement  he  agreed  to  give  J.  M.  the  sum  of  three 
guineas,  as  a  premium  to  teach  him  the  trade,  and  that  he  was  not 
to  be  employed  in  any  other  work.  The  Court  of  King's  Bench  held 
that  the  evidence  was  admissible.^  It  is,  however,  to  be  observed 
upon  this  case,  that  the  question  might  have  been  very  different 
indeed,  had  it  arisen  as  between  the  contracting  parties;  as  if,  for 
instance,  a  dispute  had  arisen  between  them  as  to  the  nature  of  the 
service  which  the  master  had  a  right  to  exact  by  virtue  of  the  agree- 
ment. If  in  that  case  the  servant  had  insisted  on  the  co-existing 
parol  agreement  to  limit  his  service  to  carpenters'  work,  the  objec- 
tion would  have  operated  strongly  that  this  would  have  been  to  super- 
add terms  by  parol  to  those  contained  in  the  written  instrument,  or 
to  explain  the  intention  of  the  parties  by  parol  evidence.  But  the 
question  was  between  strangers  to  the  contract;  the  point  in  issue 
was,  the  real  intention  of  the  parties  when  they  committed  certain 
terms  to  writing;  the  terms  so  written  were  admissible  evidence,  as 
tending  to  prove  the  fact,  on  the  natural  presumption,  in  the  absence 
of  all  suspicion  of  fraud,  that  the  parties  would  disclose  their  real 

2  Ad.  &  El.  (29  E.  C.  L.  R.)  517  ;  whel-e  it  was  held  that  a  parish  might  show 
a  settlement  by  renting  a  tenement  in  A.,  although  the  lease  stated  it  to  be  in 
B.  Clearly  parish  officers  arc  not  estopped  from  showing  the  true  consideration 
for  a  conveyance  :  R.  v.  InliabUants  of  Cheudlc,  3  B.  &  Ad.  (23  E.  C.  L.  R.) 
833 ;  and  see  It,  v.  Olney,  1  M.  &  S.  387  ;  and  case  where  evidence  has  been 
admitted  of  a  consideration  different  from  that  expressed  in  the  deed,  supra,  p. 

'  8  T.  R.  379 ;  see  also  R.  v.  ShinfieJd,  14  East  544. 
*  Fer  Lord  Kenyon,  C.  J.,  and  Lawrence,  J. 


PAllOL     EVIDENCE  —  GENERAL     RULE,     ETC.  727 

intention  ;  but  this  was  not  the  only  medium  of  proof,  neither  was  it 
an  exclusive  one,  for  the  private  statement  of  the  parties  couhl  not, 
on  any  principle,  bind  and  estop  strangers. 

Where  the  action  was  brouf'ht  against  the  heir  and  *devi-  ^  „^^^ 
see,  on  a  bond,  an  issue  was  taken  on  the  fact,  whether  the  L  "  J 
defendant  had  sold  the  estate  for  more  than  X168,  a  lease  and  release 
were  produced  in  evidence,  from  Avhich  it  appeared  that  the  defendant 
had  sold  the  estate  for  £210,  but  it  was  held  that  he  was  at  liberty 
to  prove  that  part  of  the  estate  so  sold  did  not  belong  to  the  testa- 
tor, but  had  been  purchased  by  the  defendant  for  the  sum  of  £42, 
in  order  to  be  sold  to  the  vendee.^  Here  the  evidence  Avas  consistent 
with  the  terms  of  the  deed  ;  but  even  if  it  had  not  been  so,  it  seems 
that  it  would  still  have  been  admissible  as  betAveen  those  parties  ;  for 
although,  as  between  the  defendant  and  the  vendee,  the  defendant 
might  have  been  estopped  by  his  deed  from  making  any  averment 
against  it,  yet  as  between  the  plaintiff  and  defendant  there  was  no 
mutuality,  and  consequently  no  estoppel,  and  therefore  the  defendant 
was  not  concluded,  upon  issue  joined  as  to  the  amount  for  which  the 
estate  sold,  from  showing  the  real  fact.  It  was  held  in  the  same 
case,  that  although  the  deed  stated  that  the  consideration  was  paid  to 
the  vendor,  evidence  was  admissible  to  show  that  it  Avas  paid  to  a 
third  person,  with  his  privity. 

A  party  to  a  deed  may,  in  an  action  betAveen  others,  contradict  the 
deed  by  his  testimony  ;  thus,  one  who  has  jointly  Avith  another  exe- 
cuted an  assignment  of  a  ship,  as  of  their  joint  property,  is  com- 
petent to  prove  that  he  had  no  interest  in  it.^ 

With  the  exceptions  already  adverted  to,  the  general  inference,  as 
above  stated,  seems  to  be,  that  oral  evidence  may  be  used  indifferently 
as  original  and  independent  evidence  of  a  fact,  either  concurrently 
with  or  in  opposition  to  written  testimony;''  and  that  Avritten  evidence 

y  Green  v.  Weston,  Say.  209. 

^  Walton  V.  Shelton,  per  Willes,  J.,  1  T.  R.  301. 

"  An  order  for  goods,  •describing  their  number  and  kind,  is  evidence  for  the 
plaintiff  in  an  action  against  the  defendant  for  not  delivering  the  goods,  al- 
though no  time  or  price  was  mentioned  ;  and  the  defendant's  acceptance  of  the 
order,  and  the  price  agreed  upon,  may  be  proved  by  pai'ol  :  Ingram  v.  Lea,  2 
Camp.  521.  Where  the  terms  of  adjustment  with  an  underwriter  were  endorsed 
on  the  policy,  and  the  money  was  paid,  parol  evidence  was  admitted  of  a  previ- 
ous agreement,  that  if  the  other  underwriters  should  eventually  pay  a  less  sum, 
the  surplus  should  be  returned  :  Eussell  v.  Dunskey,  6  Moore  (17  E.  C.  L.  R.) 
223.  The  fact  that  a  receipt  has  been  given  does  not  exclude  parol  evidence  of 
payment :  Rambert  v.  Cohen,  4  Esp.  C.  213.  An  oral  admission  by  a  defendant 
is  evidence  of  a  debt,  although  at  the  same  time  a  written  admission  was  en- 


729  PROOFS. 

^  however  *superior  it  may  be,  and  frequently  is  in  effect  to 

L  "  -I  mere  oral  evidence,  does  not  in  any  case,  of  its  own  autho- 
rity, unaided  by  an  express  rule  of  law,  exclude  such  evidence.' 

In  an  action  for  bribery  at  an  election,  it  was  held  that  parol  evi- 
dence was  admissible  to  prove  the  delivery  of  the  precept  to  the  re- 
^^  turnino;  officer,  although  it  appeared  that  *the  returning 
L  -J  officer  had  endorsed  upon  the  precept,  with  a  view  to  prove 
it,  the  time  of  his  having  so  received  it,  and  that  the  endorsement  had 
been  attested  by  two  witnesses.'' 

tered  in  a  book,  which  cannot  be  read  for  want  of  a  stamp  :  Singleton  v.  Bar- 
rett, 2  C.  &  J.  368  ;  Jacob  v.  Lindsay,  1  East  460  ;  Maugham  v.  Hubbard,  8  B. 
&  C.  (15  E.  C.  L.  R.)  14;  Slatterie  v.  Pooleij,  6  M.  &  W.  664 ;  and  see  supra,  p. 
506.  -  Semble,  evidence  is  admissible  that  notes  were  issued  by  a  corporation  for 
a  different  purpose  than  for  which  they  were  authorized  to  issue  them  :  Siai^k  v. 
Highgate  Archivay  Company,  5  Taunt.  (1  E.  C.  L.  R.)  792, 

So,  Avhere  a  memorandum  of  an  intended  apfreement  was  read  over  to  an  in- 
tended tenant,  but  never  signed,  parol  evidence  of  the  terms  was  admitted  :  Doe 
d.  Bingham  v.  Cartivright,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  326  ;  R.  v.  Wrangle,  2 

A.  &  E.  (29  E.  C.  L.  R.)  514  ;  Trewhitt  v.  Lambert,  10  A.  &  E.  (37  E.  C.  L.  R.) 
470  ;  Lord  Bolton  v.  To7nUn,  5  A.  &  E.  (31  E.  C.  L.  R.)  856  ;  R.  v.  Worth,  4  Q 

B.  (45  E.  C.  L.  R.)  132.  Where  the  plaintiff's  agent  entered  into  a  verbal  agree- 
ment with  the  defendant,  and  make  a  memorandum  of  the  terms  to  assist  his 
own  recollection,  which  was  not  signed,  it  was  held  unnecessary  to  produce  it : 
Dalison  v.  Stark,  4  Esp.  163.  So  a  memorandum  delivered  by  the  auctioneer 
to  the  bidder,  to  whom  lands  were  let  by  auction,  containing  a  description  of 
them,  the  term,  and  the  rent  to  be  paid,  but  not  signed  by  any  one,  is  not  such 
a  writing  as  to  exclude  parol  evidence  :  Ramsbottom  v.  Tunbridge,  2  M.  &  S.  434. 
So  the  fact  of  tenancy  may  be  proved  by  parol,  although  there  be  a  written 
lease:  R.  v.  Eingston-iipon-Hull,  7  B.  &  C.  (14  E.  C.  L.  R.)  661  ;  but  the  term 
can  be  proved  by  the  lease  only ;  R.  v.  Merthyr  Tydvil,  1  B.  &  Ad.  (20  E.  C.  L. 
R.)  29  ;  Augustien  v.  Challis,  1  Ex.  279.  So,  the  fact  that  goods  were  deposited 
for  sale  may  be  proved  by  parol,  although  the  terms  may  be  in  writing,  and 
can  be  proved  by  writing  only  :  Whitfield  v.  Brand,  16  M.  &  W.  282  ;  Keys  v. 
Hartoood,  2  C.  B.  (52  E.  C.  L.  R.)  905. 

•^  Grey  v.  Smytlies,  Burr.  2273.  It  appeared  in  the  case  of  Reason  and  Tran- 
tor,  Stra.  499,  that  the  dying  declaration  of  Mr.  Lutterel,  the  deceased,  had  been 
taken  down  in  writing  by  a  witness  at  the  instance  of  two  justices  of  the  peace 
who  were  present ;  the  witness  had  afterwards  copied  the  writing  thus  made,  and 
produced  it  at  the  trial ;  but  the  original  was  not  produced.  The  court  held  that 
the  copy  was  not  evidence.  Upon  tiiis  it  may  be  observed,  that  although  the  copy 
was  not  evidence,  the  original  being  still  in  existence,  and  being  better  evidence 
than  the  copy,  yet  it  seems,  that  in  such  a  case,  the  mere  fact  that  the  witness 
reduced  the  declarations  to  writing  at  the  time,  would  not  have  excluded  parol 


*  When  a  verbal  sale  of  chattels  is  perfected  by  delivery  and  a  bill  of  sale  sub- 
sequently accepted  from  the  vendor,  the  verbal  sale  may  be  proved  by  parol  with- 
out the  production  of  the  writing:   Sanders  v.  Stokes,  30  Ala.  432. 


DEFECTIVE    AND     SECONDARY — DISTINCTION.  730 

Where  letters  are  written  in  so  dubious  a  manner  as  to  be  capable 
of  different  constructions,  or  to  be  unintelligible,  without  the  aid  of 
extrinsic  circumstances,  their  meaning  becomes  a  question  of  fact  for 
the  jury,  and  parol  evidence  of  such  extrinsic  facts  is  admissible ;  as 
in  the  case  of  libels,  threatening  letters,  or  a  letter  offered  in  evi- 
dence to  prove  acknowledgments  to  take  a  case  out  of  the  Statute  of 
Limitations.  But  if  they  cannot  be  explained  by  extrinsic  circum- 
stances, then,  like  deeds  or  agreements,  their  construction  is  matter 
of  law  for  the  court." 

So,  an  instrument  in  itself  defective  and  inoperative  may  be  con- 
firmed and  supplied  by  oral  testimony,  and  operate  in  conjunction 
with  it.  Thus,  where  in  the  bishop's  register  a  blank  was  left  for  the 
name  of  the  patron,  it  was  held  that  this  might  be  supplied  by  oral 
testimony,**  for  as  the  presentation  itself  might  have  been  by  parol, 
it  might  have  been  proved  by  the  aid  of  the  suppletory  parol  evidence, 
*consequently  there  was  no  unwarranted  substitution  of  oral  r^yo-i-i 
for  written  evidence. 

In  order  to  exclude  oral  evidence  of  a  contract,  it  is  necessary  to 
prove  that  there  is  a  subsisting  written  contract.  And,  therefore, 
after  the  plaintiff  in  ejectment  had  given  parol  evidence  of  the  ten- 
ancy, the  evidence  was  held  to  be  suflScient,  although  it  appeared 
upon  the  cross-examination  of  his  witness  that  an  agreement  relative 
to  the  land  in  question  had  been  produced  upon  a  former  trial,  and 
still  existed ;  but  he  could  not  say  whether  it  was  a  subsisting  agree- 
ment or  between  these  parties.* 

evidence  of  those  declarations,  the  instrument  not  being  an  authentic  one,  au- 
thorized by  the  statute  of  Philip  and  Mary:  see  Sayer's  case,  12  Vin.  Ab.,  A.  b. 
23,  pi.  7.  In  the  same  case  other  declarations  of  the  deceased,  which  had  not 
been  taken  down  in  writing,  made  at  other  times,  were  received  in  evidence :  see 
R.  V.  Smith,  2  Stark.  C.  (3  E.  C.  L.  R.)  208. 

<=  Per  Buller,  J.,  Macheath  v.  Haldimand,  1  T.  R.  182. 

*  Bishop  of  Meath  v.  Lord  Belfield,  1  Wils.  215. 

^  Doe  d.  Wood  v.  Morris,  12  East  337 ;  Doe  d.  Shearwood  v.  Pearson,  Ibid. 
238,  n.  So,  where  a  party  had  agreed  to  sell  goods  on  commission,  but  the 
objection  that  the  agreement  was  in  writing  was  not  made  till  the  agreement 
had  been  proved :  Whitfield  v.  Brand,  16  M.  &  W.  282 ;  and  see  Keys  v.  Hat-- 
wood.  2  C.  B.  (52  E.  C.  L.  R.)  905.  Obviously,  if  the  plaintiff's  case  be  estab- 
lished without  showing  that  there  was  any  writing,  he  will  not  be  nonsuited  by 
the  defendant  producing  it  5  nor  can  the  latter  do  so,  unless  it  be  properly 
stamped,  &c.,  as  it  is  his  own  evidence:  Fielder  v.  Ray,  6  Bing.  (19  E.  0.  L.  R.) 
332 ;  R.  V.  Padstoiv,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  208.  Secus,  where  it  appears 
by  the  plaintiff's  evidence  that  there  is  a  written  agreement:  Fenn  v.  Griffith, 
6  Bing.  (19  E.  C.  L.  R.)  533;  and  consequently,  in  Curtis  v.  Greated,  1  A.  & 
E.  (28  E.  C.  L.  R.)  167,  which  was  an  action  by  the  purchaser  against  the 
43 


731  PROOFS. 

A  mere  unsigned  memorandum,  made  with  a  view  to  a  subsequent 
agreement,  need  not  be  proved/ 

There  is  a  distinction  between  the  exclusion  of  evidence  by  the 
operation  of  this  rule,  and  a  mere  failure  or  defect  in  evidence  which 
is  in  itself  admissible.  The  eifect  of  the  rule  is  to  exclude  particular 
evidence  altogether  until  proof  be  given  that  better  evidence  is  unat- 
tainable ;  and  when  such  proof  has  been  given,  to  admit  the  evidence 
P^r»q9-i  of  *inferior  degree.  But  evidence  tending  to  the  proof  may 
be  admissible,  yet  insufficient,  and  may  still  be  so,  although 
it  be  proved  that  better  evidence  cannot  be  had. 

In  the  case  of  Williams  v.  The  East  India  Company,^  the  question 
was,  whether  the  agent  of  the  defendants,  who  were  the  freighters  of 
the  plaintiff's  ship,  had  apprised  the  plaintiff  or  his  officers  of  the 
inflammable  and  dangerous  nature  of  a  quantity  of  roghan,  which  had 
been  stowed  on  board  the  ship,  and  which  ultimately  occasioned  its 
destruction.  It  was  the  duty  of  the  conductor  of  military  stores  to 
convey  goods  on  board  the  ship,  and  of  the  chief  mate  to  receive 
them  ;  the  chief  mate  was  dead,  and  no  evidence  was  given  of  what 
passed  between  him  and  the  conductor  of  the  stores ;  but  the  captain 
and  second  mate  proved  that  no  communication  had  been  made  to 
them  of  the  nature  of  the  roghan.  It  was  objected,  that  the  conduc- 
tor of  the  stores  ought  not  to  have  been  examined,  and  it  was  so  ruled 
by  Lord  Ellenborough  at  Nisi  Prius,  and  afterwards  decided  by  the 
whole  court,  on  the  ground,  1st,  that  the  delivery  without  notice  thus 
insisted  upon  by  the  plaintiff  was  a  criminal  act,  and  that  therefore  it 
was  incumbent  on  the  plaintiff  to  prove  the  neglect  to  give  notice ; 
and,  2dly,  that  the  plaintiff  had  not  given  sufficient  prima  facie  evi- 
dence of  the  want  of  notice.  The  defect  in  this  instance  seems  to 
have  consisted  rather  in  a  failure  in  the  measure  of  the  proof,  than 
in  the  substitution  of  secondary  for  original  evidence.  It  was  neces- 
sary to  negative  the  fact  of  communication,  which,  under  the  circum- 
stances, could  be  proved  by  no  one  but   the   conductor,  for   the   chief 

auctioneer  to  recover  the  deposit  upon  failure  of  title,  and  the  plaintiff  produced 
the  conditions  of  sale,  one  of  which  required  the  execution  of  an  agreement  to 
pay  the  residue  by  the  purchaser,  and  it  further  appeared  that  there  was  a 
written  agreement  of  sale  signed  by  him,  the  defendant  was  held  entitled  to 
ask  whether  it  related  to  the  deposit,  with  a  view  to  oblige  the  plaintiff  to  pro- 
duce it,  if  the  answer  was  in  the  affirmative. 

f  Doe  V.  Cartwriijht,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  32(3 ;  Dalison  v.  Stark,  4  Esp. 
]G3,  post;  liamnhottom  v.  Tunnbridge,  2  M.  &  S.  434, 

8  3  East  192.  See  the  case  of  Kotster  v.  Heed,  G  B.  &  C.  (13  E.  C.  L.  R.)  19 ; 
and  Vol.  II.,  tit.  Policy  of  Insurance,  Presumptive  Evidence  of  Loss. 


QUANTITY    AND     MEASURE     OF     PROOF.  732 

mate  was  dead;  and  that  evidence  "which  was  essential  was  not  ^iven. 
The  evidence  which  was  received  from  the  captain  and  second  mate, 
that  they  did  not  know  that  any  communication  had  been  made  of  the 
nature  of  the  article,  Avas  not  evidence  of  a  secondary  *naturej  r*7qq-| 
substituted  in  the  place  of  superior  evidence ;  for  it  was  at 
all  events  admissible  evidence,  and  would  still  have  been  admissible 
had  the  conductor  been  called,  contrary  to  the  nature  of  secondary 
evidence,  which  can  never  be  admitted  where  the  superior  evidence  is 
adduced,  but  is  wholly  superseded  by  it.  Neither,  like  secondary 
evidence,  could  it  have  been  substituted  for  the  superior  evidence, 
when  the  latter  had  become  unattainable ;  for  had  the  conductor 
been  dead,  there  would  still,  it  seems,  have  been  a  defect  in  the 
evidence  incapable  of  being  supplied  by  that  of  the  captain  and  chief 
mate. 

With  regard  to  the  quantity  and  measure  of  proof,  but  few  obser- 
vations are  requisite.  It  is  for  the  parties,  according  to  their  own 
discretion,  to  procure  such  evidence  as  the  circumstances  of  the  case 
may  supply ;  and  it  is  for  the  jury  to  decide  upon  its  effect.  The 
law  rarely  interferes  as  to  the  measure  of  proof;  and  the  sufficiency 
cannot,  in  the  nature  of  things,  be  subject  to  legal  definition  or  con- 
trol.*"  All  that  can  be  done  is  to  intercept  such  evidence  as  would 
tend  to  prejudice  or  mislead;  this  being  done,  the  law  confides  in  the 
good  sense  and  integrity  of  the  jury.  Neither  is  there  any  order  in 
which  evidence  must  be  given ;  as  to  the  order  in  which  a  party 
brings  forward  his  proofs,  he  is  guided  by  his  own  discretion.'  In 
some  few  instances,  however,  the  law  interferes  as  to  the  number  of 
witnesses.-* 

''  Quae  argumenta  ad  quern  modum  probanda;  cnique  rei  sufEciant,  nullo  certo 
modo  satis  definiri  potest. 

*  R.  v.  Turner,  2  C.  &  K.  (61  E.  C.  L.  R.)  735,  j^er  Erie,  J. 

J  It  seems  that  in  equity  no  decree  can  be  made  on  the  oath  of  one  witness 
against  the  defendant's  answer  on  oath  :  Story's  Eq.  Jur.  1528.  But  circum- 
stances may  be  equivalent  to  the  testimony  of  any  single  witness  :  Ibid. ;  3  Ch. 
C.  123,  69.  And  formerly  one  witness  was  not  sufficient  against  the  husband, 
although  it  was  supported  by  the  answer  of  the  wife,  for  she  could  not  be  a 
witness  against  her  husband :  2  Ch.  C.  30 ;  Wrottesely  v.  Bendish,  3  P.  Wms. 
238.  But  a  decree  may  be  made  on  the  evidence  of  a  single  witness,  where  the 
evidence  of  the  party  is  falsified  :  2  Vern.  554;  2  Atk.  19;  1  Bro.  Ch.  C.  52. 

In  general,  at  common  law  one  witness  was  in  all  cases  sufficient;  per  Holt, 
C.  J.,  who  said  that  the  authorities  cited  by  Lord  Coke  to  the  contrary  did  not 
warrant  his  opinion  :  Carth.  144 ;  Co.  Litt.  6,  b.  The  Spiritual  Court  acting 
upon  the  rules  of  the  civil  law,  requires  two  witnesses ;  but  where  temporal 
matter  is  pleaded  in  bar  of  an  ecclesiastical  demand,  and  the  evidence  of  one 


734  PROOFS. 

r^rro4-\  *^s  ill  tliG  casB  of  bigli  treason,  wlien  it  works  corruption 
of  blood,  there  two  witnesses  are  necessary  by  tbe  express 
provisions  of  the  statute  law.''  So,  in  the  case  of  perjury,  two  wit- 
nesses are  essential,  for  otherwise  there  would  be  nothing  more  than 
the  oath  of  one  man  against  another,'  upon  whicli  the  jury  could  not 
safely  convict.  In  bastardy  cases,  the  statute""  requires  the  evidence 
of  the  mother  to  be  corroborated  in  some  material  particular,  in  order 
to  charge  the  putative  father;  and  in  criminal  cases,  the  judge  will 
generally  tell  the  jury  that  the  evidence  of  an  accomplice  ought  to 
be  so  corroborated,  though  it  is  certainly  competent  for  the  jury  to 
act  on  his  sole  evidence." 

In  other  cases  the  general  rule  seems  to  be,  that  where  there  is  any 
lecral  admissible  evidence  tending  to  prove  the  issue,  the  effect  of  that 
evidence  is  solely  for  the  consideration  of  the  jury." 
l-^_„--l  *It  is,  however,  in  all  cases  requisite  that  the  plaintiff 
should  adduce  some  ])7'imd  facie  evidence  in  support  of 
every  essential,  allegation.  Where  there  is  a  failure  of  evidence, 
tending  to  establish  any  one  essential  averment,  the  court  directs 
an  acquittal  in  a  criminal,  or  directs  the  plaintiff  to  be  nonsuited  in 
a  civil  case.  But,  in  civil  actions,  if  there  be  any  evidence,  however 
weak,  tending  to  the  proof  of  the  issue,  the  plaintiff  may,  by  appear- 
ing when  he  is  called,  have  his  case  submitted  to  the  consideration  of 
the  jury;  but  if  there  should  be  no  evidence  tending  to  prove  anyone 
essential  fact,  the  jury  would  be  directed  to  give  a  verdict  against  him, 
by  which  he  would  be  absolutely  and  finally  concluded. 

witness  is  refused,  a  prohibition  will  be  awarded.  As,  where  an  executor 
proves  the  payment  of  a  legacy  by  one  witness':  Shatter  v.  Friend,  Show.  175 ; 
Carth.  142. 

"  7  &  8  Will.  III.  c.  3. 

1  Vol.  II.,  tit.  Perjury;  R.  v.  Yates,  Car.  &  M.  (41  E.  C.  L.  R.)  132.  But  it 
is  clear  that  two  witnesses  to  all  the  facts  for  the  prosecution  are  not  necessary. 
It  is  enough  if  there  be  something  in  the  case  to  make  the  oath  of  the  prose- 
cutor preferable  upon  the  whole  to  that  of  the  prisoner:  R.  v.  Boulter,  21  L. 
J.,  M.  C.  57.  But  there  must  be  such  corroboration  as  to  each  assignment  to 
justify  a  conviction  upon  each :  R.  v.  Parker,  Car.  &  M.  (41  E.  C.  L.  R.)  639 ; 
R.  V.  Virrier,  12  Ad.  &  E.  (40  E.  C.  L.  R.)  317. 

"^  7  &  8  Vict.  c.  101 ;  8  &  9  Vict.  c.  10. 

"  R.  V.  Atwood,  1  Leach  464 ;  R.  v.  Jones,  2  Camp.  132 ;  R.  v.  Hastings,  7  C. 
&  P.  (32  E.  C.  L.  R.)  152;  R.  v.  Durham,  1  Leach  479.  There  are,  however, 
some  ofFences  to  which  this  rule  would  not  be  applicable  :  R.  v.  Jarvis,  2  M.  & 
Rob.  40 ;  R.  v.  Hargrave,  5  C.  &  P.  (24  E.  C.  L.  R.)  170.  As  to  the  necessity 
for  the  corroboration  being  of  some  particular  material  to  the  charge,  see  R.  v. 
Addis,  6  C.  &  P.  (25  E.  C.  L.  R.)  388  ;  R.  v.  Webb,  6  C.  &  P.  (25  E.  C.  L.  R.)  595. 

"  Vol.  II.,  tit.  Conviction. 


MATTERS     JUDICIALLY     NOTICED.  735 

No  evidence  is  requisite  to  prove  the  existence  of  a  fact  "whicli 
must  have  happened  according  to  the  constant  and  invariable 
course  of  nature/  or  to  prove  any  general  law  :'^  nor  is  it  necessary 

P  See  Lord  Ellenborouf^h's  observations,  B.  v.  LvJ/'e,  8  East  201. 

'  Facile  patet  non  indigere  probatione  jus  commune,  quod  judici  jam  notum 
esse  censetur:  Ileinecc.  El.  J.  C.  443.  The  courts  notice  the  contents  of  all 
public  Acts:  Reniger  v.  Fogossa,  Plow.  12  ;  81,  a,  83,  b  ;  includino;  all  facts  re- 
cited or  stated  in  them  :  E.  v.  Luiton,  4  M.  &  S.  332  ;  and  the  true  title  of  them  : 
Beck  V.  Beverly,  1 1  M.  &  W.  845  ;  Holland's  case,  4  Co.  75.  Of  such  as  relate 
to  trade  in  general :  Kirk  v.  Kowill,  1  T.  R.  124;  but  not  of  a  statute  relating 
to  a  private  trade  only  :  Ibid.  But  if  a  statute,  private  in  its  nature,  gives  a 
forfeiture  to  the  King,  it  is  a  public  Act :  R.  v.  Bnggs,  Skin.  428  ;  and  if  an 
Act  relate  to  a  public  highway,  it  is  so  far  a  public  Act :  ante,  p.  275.  And 
the  courts  must  now,  by  8  &  9  Vict.  c.  113,  s.  31,  [ante,  p.  277,)  receive  as  evi- 
dence copies  of  private,  and  local  and  personal  acts,  purporting  to  be  printed 
by  the  Queen's  printers. 

So,  the  courts  will  notice  all  other  general  laws,  as  that  every  corporation  has 
a  right  of  removing  one  of  its  members  :  R.  v.  Lyme  Regis,  Doug.  149.  The 
privileges  of  the  King's  Palaces :  R.  v.  Elderton,  Lord  Rayp.  980.  And  all 
privileges  of  the  Crown  :  Ibid.  The  Ecclesiastical  Law  :  1  Roll.  Abr.  526 ;  6 
Vin.  Abr.  496  ;  and  the  Admiralty  Law  :  Ibid. 

The  commencement  of  the  sessions  of  Parliament :  Partridge  \.  Strange, 
Plowd.  84  ;  R.  V.  Wilde,  1  Lev.  216  ;  Spriiig  v.  Eve,  2  Mod.  240 ;  Birt  v.  Roth- 
well,  Lord  Raym.  343  ;  Moor  551  ;  the  session  in  which  a  statute  was  passed, 
and  the  year  of  the  reign  :  R.  v.  Biers,  1  A.  &  E.  (28  E.  C.  L.  R.)  327  ;  Gihbs 
V.  Pike,  8  M.  &  W.  223  ;  the  place  of  holding  the  Parliament  on  a  particular 
day :  Birt  v.  Rothwell,  Lord  Raym.  210  ;  the  prorogation  of  Parliament :  1  Lev. 
296,  supra;  the  course  of  proceedings  in  Parliament,  whether  before  one  of 
the  Houses,  or  before  a  Committee:  Lake  v.  King,  1  Saund.  131.  The  journals 
of  either  House  were  not  judicially  noticed  :  R.  v.  Knollgs,  1  Lord  Raym  15  ; 
but  by  8  &  9  Vict.  c.  113,  s.  3,  copies  of  them,  purporting  to  be  printed  by  the 
Queen's  printers,  or  the  printer  of  either  House,  must  be  received  :  supra,  p.  281, 

So  the  courts  will  take  notice  of  all  courts  of  general  jurisdiction,  and  their 
proceedings  :  Dohson  v.  Bell,  2  Lev.  176  ;  as  of  the  Court  of  Chancery  :  Weaver 
V.  Clifford,  Cro.  J.  3 ;  Worlich  v.  Massy,  Cro.  Jac.  67  ;  and  the  other  courts  at 
AYestminster :  Lane^s  case,  2  Co.  16,  b ;  Mounson  v.  Bourn,  Cro.  Car.  526  ;  W. 
Jones  417  ;  H.  Slade's  case,  4  Co.  93,  b.  The  proceedings  of  the  County  Pala- 
tine Courts  :  Peacock  v.  Bell,  1  Saund.  73.  Of  the  Courts  in  Wales :  Broughton 
v.  Randall,  Cro.  Eliz.  502  ;  Gryff'yth  v.  Jenkins  ,  Cro.  Car.  179.  Of  the  Prero- 
gative Court  of  the  Archbishop  of  Canterbury  :  Shelton  v.  Cross,  1  Ford  466, 
sed  qucere.  But  they  do  not  notice  the  mere  practice  of  other  courts,  thus  the 
practice  of  the  Court  of  Chancery  :  Li  re  Clarke,  2  Q.  B.  (42  E.  C.  L.  R.)  619  ; 
Dicas  V.  Lord  Brougham,  1  M.  &  Rob.  312 ;  and  of  the  Ecclesiastical  Courts 
is  a  matter  of  fact  to  be  proved  by  witnesses :  Beaurain  v.  Sir  W.  Scott,  3 
Camp.  C.  388;  Tucker  v.  Liman,  4  M.  &  G.  (43  E.  C.  L.  R.)  1049;  so  is  that 
of  the  Insolvent  Court:  R.  v.  Koops,  6  A.  &  E.  (33  E.  C.  L.  R.)  198;  and  of 
the  Bankruptcy  Court :    Van  Sandaii  v.  Turner,  6  Q.  B;  (51  E.  C.  L.  R.)  773. 

The  courts  will  notice  what  courts  possess  a  general  jurisdiction :  Tregany 


736  PROOFS. 

r*7^fi    *7^7~\  ^'^  prove   any  general   customs  *of  the   realm/  or  any 
artificial   regulation   prescribed  by   *public  and    com- 

V.  Fletcher,  Ld.  Raym.  154 ;  Peacock  v.  Bell,  1  Saund.  73  ;  1  Sid.  340.  And  the 
limits  of  their  jurisdiction  :  2  Inst.  557.  And  their  officers:  Ogle  v.  Norcliffe, 
Ld.  Raym.  869;  see  Dillon  y.  Ilarjmr,  Ld.  Raym  898.  But  they  do  not  take 
judicial  notice  of  the  nature  and  extent  of  inferior  courts  :  Moravia  v.  Sloper, 
Willes  37  ;  nor  of  the  proceedings  of  inferior  courts  :  R.  v.  Chancellor  of  Cam- 
hridge,  Ld.  Raym.  1334;  nor  of  any  particular  jurisdiction,  as  of  a  dean  and 
chapter  to  induct:  Bro.,  Presentation  al  Eglise,  pi.  13,  Office,  pi.  2;  nor  that 
the  lord  of  a  particular  franchise  has  the  return  of  writs  :  Bro.,  Office,  pi.  2  ; 
nor  of  a  particular  liberty  :  March.  125  ;  nor  of  the  Cinque  Ports :  2  Inst. 
557  ;  nor  of  an  entry  in  the  sheriff's  book,  referred  to  by  an  affidavit :  Russell 
V.  Dickson,  6  Bins;.  (19  E.  C.  L.  R.)  442.  Nor  foreign  laws  :  Mostijn  v.  Fahri- 
gas,  Cowp.  174.  Nor  laws  of  Scotland  :  Woodham  v.  Edwards,  5  A.  &  E.  (31 
E.  C.  L.  R.)  771.  Nor  of  the  laws  of  the  plantations  abroad  :  Wet/  v.  Yally.  6 
Mod.  195.  Nor  the  seal  of  a  foreign  court :  Henry  v.  Adey,  3  East  221  ;  Black 
V.  Lord  Brayhooke,  2  Stark.  C.  (3  E.  C.  L.  R.)  7  ;  R.  \.  Bathwick,  2  B.  &  Ad. 
(22 E.  C.  L.  R.)  639.  But  they  take  judicial  notice  of  the  laws  of  Ireland: 
Hunter  v.  Potts,  4.T.  R.  194;  Reynolds  v.  Fenton,  3  C.  B.  (54  E.  C.  L.  R.)  191  ; 
and  that  the  common  law  prevails  there  :  R.  v.  Neshitt,  2  D.  &  L.  529  ;  per 
Patteson,  J. 

So,  every  court  will  notice  the  records  of  its  own  court,  but  not  deeds  en- 
rolled, for  these  are  merely  the  private  acts  of  the  parties,  authenticated  in 
court;  nor  the  letters  patent  of  another  court:  Wymark^s  case,  5  Co.  74,  b.  ; 
Bac.  Abr.,  Ev.  F. 

The  House  of  Lords,  in  a  committee  of  privileges,  even  admitted  an  entry 
in  their  journals  as  evidence  of  the  limitations,  in  a  patent,  without  requiring 
the  production  of  the  patent:  Lord  Dvfferin  and  Clandeboye^  s  claim,  4  CI.  &  F. 
568. 

'  As  the  custom  of  merchants  :  Williams  v.  Williams,  Carth.  269  ;  Carter  v. 
Downish,  Ibid.  83;  Pinkney  \.  Hall,  Ld.  Raym.  175;  Erskine  v.  Murray,  Ld. 
Raym.  1542;  Brandao  v.  Barnett,  3  B.  C.  (54  E.  C.  L.  R.)  519;  12  CI.  &  F. 
787  ;  the  customs  of  gavelkind  and  Borough-English  :  Clements  v.  Scudmore, 
Ld.  Raym.  1025  ;  Co.  Litt.  175;  Launder  v.  Brooks,  Cro.  Car.  562. 

But  peculiai-ities  not  essential  to  tenures  :  1  Sid.  138  ;  Brown  v.  Ricks,  2  Sid. 
153  ;  Launder  v.  Brooks,  Cro.  Car.  562  ;  such  as  a  custom  to  devise  :  2  Sid.  153  ; 
or  a  gavelkind  custom  to  hold  by  the  curtesy,  although  the  wife  has  no  issue  ; 
1  Sid.  138  ;  2  Sid.  153;  or  particular  local  customs:  Sjnnk  v.  Tenant,  1  Roll. 
R.  105  ;  Blacquiere  v.  Hawkins,  Doug.  378  ;  such  as  that  of  foreign  attachment 
in  London  :  1  Roll.  105,  supra ;  or  of  carting  whores :  Stainton  v.  Jones,  Doug. 
380,  note  ;  Argyle  v.  Hunt,  Str.  187  ;  or  that  none  but  freemen  of  London  are 
admissible  into  the  livery  of  a  company  :  Piper  v.  Chappell,  14  M.  &  W.  624, 
must  be  proved.  But  the  customs  of  London  are  noticed  in  the  city  courts : 
Doug.  380 ;  and  by  the  courts  at  Westminster,  after  they  have  been  certified  : 
Blacquiere  v.  Hawkins,  Doug.  380.  But  semhle,  the  courts  take  notice  of  such 
customs  only  as  have  been  certified  to  themselves:  Piper  v.  Chappell,  14  M.  & 
W.  649  ;  and  as  to  the  certificate,  see  Crosby  v.  Hetherington,  4  M.  &  G.  (43  E. 
C.  L.  R.)  933.     The  custom  of  the  city,  that  every  shop  is  a  market  overt,  was 


MATTERS    JUDICIALLY    NOTICED.  738 

petent  authority;  such  as  the  ordinary  *computation  of  time   r+Yoo-i 
by  tlie  calendar  ;*  or  the  known  divisions  of  the  kingdom  ;' 
or  any  public  matters  recited  in  Acts  of  Parliament,"  royal 


[■"739] 
proclamations,"    or  other    *public   documents,   published    by 

certified  by  Sir  E.  Colse,  3  Co.  83.  The  custom  of  forei<:;n  attachment  was  cer- 
tified by  Starkie,  recorder  of  that  city,  22  Edw.  IV. ;  Doug.  379  ;  1  Rol.  Abr. 
554.  The  custom  of  a  feme  covert  being  sole  trader  is  also  noticed  :  Lavie  v. 
Phillips,  Burr.  1784.  And  the  distribution  of  the  property  of  intestate  free- 
men of  London  :  Bruin  v.  Knott,  12  Sim.  452. 

°  Hoyle,  V.  Cormcallis,  Stra.  387  ;  Brough  v.  Parkings,  Ld.  Raym.  992  ;  2  &  3 
Edw.  VI.  c.  1  ;  5  &  6  Edw.  VI.  c.  1 ;  24  Geo.  II.  c.  23.  The  fasts  and  festivals 
appointed  by  the  calendar ;  Brough  v.  Perkins,  6  Mod.  80  ;  P,  v.  Justices  of' 
Ipswich,  2  Ford.  280  ;  Harvy  v.  Broad,  Salk.  626.  The  number  of  days  in  a 
particular  month  :  1  Roll.  Abr.  524.  The  coincidence  of  the  day  of  the  week 
with  that  of  the  year :  Page  v.  Faucet,  Cro.  Eliz.  227  ;  Smith  v.  Boucher,  Ann. 
64.  That  a  particular  day  is  a  Sunday :  Hanson  v.  Shackelton,  4  D.  P.  C.  8. 
But  not  of  the  hours,  as  of  the  time  of  sunset:  Collier  v.  Hokes,  2  C.  &  K.  (61 
E.  C.  L.  R.)  1012.  So,  they  will  notice  the  beginning  and  end  of  term:  Austin 
V.  Bewley,  Cro.  J.  548  ;  Thomson  v.  Southwell,  12  Mod.  647  ;  Dohson  v.  Bell,  2 
Lev.  176. 

*  The  courts  will  notice  the  known  divisions  of  the  kingdom  into  counties : 
R.  V.  Sharpe,  8  C.  &  P.  (34  E.  C.  L.  R.)  436  ;  but  not  the  local  situation  of 
places  within  particular  counties,  or  the  distances  of  counties  from  each  other: 
Deyhel's  case,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  243-,  nor  the  division  of  counties, 
unless  described  by  statute :  R.  v.  Bourne,  Burr.  s.  c.  42 ;  2  &  3  Will.  IV.  c. 
64.  Also,  counties,  inferior  counties :  March.  125;  2  Inst.  557.  That  a  county 
is  co-extensive  with  a  particular  town:  R.  v.  Baker,  18  &  19  Geo.  II.  Also, 
the  ecclesiastical  divisions  of  the  kingdom  :  Adams  v.  Terre-tenants  of  Savage, 
2  Ld.  Raym.  854.  Bu«t  not  the  situation  of  liberties,  vills  or  hamlets:  2  Inst. 
557 ;  R.  V.  Greep,  Comb.  459  ;  nor  that  a  place  is  in  a  particular  county,  as 
that  the  Tower  is  in  London  :  Brown  v.  Thompson,  2  Q.  B.  (42  E.  C.  L.  R.) 
789  ;  HumjyJireys  v.  Budd,  9  D.  P.  C.  1000 ;  nor  that  a  town  is  in  a  particular 
diocese :  R.  v.  Sympson,  2  Ld.  Raym.  1379 ;  Str.  609.  So,  the  courts  will 
notice  the  extent  of  a  port ;  Fuzakerley  v.  Wiltshire,  Str.  469  ;  and  of  an  incor- 
porated town  :  R.  v.  Blacksmith'' s  Company,  Mich.  4  Geo.  II. 

The  court  will  not  notice  without  an  averment,  that  Dublin,  mentioned  in  a 
bill  of  exchange,  is  Dublin  in  Ireland :  Kearney  v.  King,  2  B.  &  Aid.  301.  Of 
course  they  will  not  notice  the  distance  of  streets  in  London  from  one  another, 
although  they  are  well  known :  Kirby  v.  Hickson,  1  L.  M.  &  P.  364 ;  nor  that 
a  particular  street  is  a  thoroughfare :  Grant  v.  Moser,  5  M.  &  G.  (44  E.  C.  L. 
R.)  129. 

"  As  of  a  war  with  France,  the  war  being  mentioned  in  several  statutes :  R. 
V.  De  Berenger,  3  M.  &  S.  67  ;  and  see  supra,  p.  278. 

^  Supra,  p.  281.  The  court  will  take  judicial  notice,  as  a  public  matter 
affecting  the  government  of  the  country,  that  an  allegation  that  a  revolted 
colony  has  been  recognized  as  an  independent  State  by  this  country  is  false : 
Taylor  v.  Barclay,  2  Sim.  213.  So,  they  will  notice  the  existence  of  a  foreign 
State  recognized  by  the  government:  Yrisarri  v.  Clement,  3  Bing.  (11  E.  C.  L. 
R.)  438. 


739  PROOFS. 

competent  authority  ;''  nor  is  evidence  necessary  to  prove  the  time 
of  the  accession  of  the  sovereign  ;  or  his  death  ;^  the  privileges  of 
the  royal  palace  ;'^  or  the  great  and  privy  seals.''  So,  the  courts  will 
take  judicial  notice  of  the  seals  of  the  superior  courts, "^  including  the 
courts  of  the  counties  palatine  ;**  of  the  Ecclesiastical  Courts  ;^  of  the 
High  Court  of  Admiralty  ;^  of  the  Court  of  Bankruptcy  f  of  the 
Insolvent  Court;''  of  the  new  County  Courts;'  of  the  Court  of  the 
Vice-Warden  of  the  Stannaries  ;•*  of  the  Board  of  Poor  Law  Com- 
missioners ;'^  of  the  Record  Office;^  of  the  General  Registry  Office;"" 
of  the  Registrar  of  Designs'  Office  ;''  of  the  seal  of  the  Apothecaries' 
Company  to  a  certificate  of  the  qualification  of  an  apothecary  f  and 
of  the  corporate  seal  of  the  City  of  London. p  And  it  seems  that 
where  particular  seals  are  given  by  Act  of  Parliament,  the  courts 
must  take  judicial  notice  of  them. 

*But  the  courts  will  not  take  notice  without  proof  of  the 
■-  ^  seals  of  inferior  courts,  unless  made  cognizable  by  particu- 
lar statutes ;  nor  of  the  Irish,  colonial,  or  foreign  courts. "^  But 
now  documents  which  in  Ireland  were  admissible  in  evidence  with- 
out proof  of  seal  or  signature,  shall  be  received  in  the  courts  of 
England  without  such  proof;  and  so  likewise,  documents  which  are 
admissible  in  England  without  proof  of  the  seal  shall  be  received 
in  Ireland  without  such  proof,  and  both  of  these  classes''  are  also  to 

y  As  the  London  Gazette,  without  proof  of  its  having  come  from  the  Queen's 
printer:  B.  v.  Forsyth,  R.  &  R.  274;  sed  qucere;  and  see  supra,  pp.  279,  281. 
^  Holvian  v.  Burrow,  2  Ld.  Raym.  791.  , 

*  Attorney-General  v.  Donaldson,  10  M.  &  W.  117. 
**  Supra,  p.  257,  et  seq. 

'^  Com.  Dig.,  tit.  Evidence,  A.  2 ;  supra,  p.  258. 

^  Olive  v.  Guin,  2  Sid.  145. 

«  B.  N.  P.  247. 

f  Green  v.  Waller,  Ld.  Raym,  891. 

e  1  &  2  Will.  IV.  c.  56,  ss.  28,  29 ;  2  &  3  Will.  IV.  c.  114,  s.  9. 

"  5  &  6  Vict.  c.  116. 

*  9  &  10  Vict.  c.  95,  see  ss.  3,  57,  111. 
J  6  &  7  Will.  IV.  c.  106,  s.  19. 

"  4  &  5  Will.  IV.  c.  76,  s.  3. 

1  1  &  2  Vict.  c.  94,  s.  31. 

■»  6  &  7  Will.  IV.  c.  86,  s.  33. 

"  5  &  6  Vict.  c.  100,  8.  16 ;  6  &  7  Vict.  c.  65,  ss.  6,  7. 

»  14  &  15  Vict.  c.  99,  8.  8. 

P  iJoe  d.  Woodmass  v.  Mason,  1  Esp.  53. 

■1  Henry  v.  Adaj,  3  East  221  ;  Buchanan  v.  Rucker,  1  Camp.  63 ;  Clark  v. 
Mullick,  3  Moo.  P.  C.  11.  252,  where  it  was  held  that  the  seals  of  our  courts 
must  be  proved  in  the  colonies. 

'  14  &  15  Vict.  c.  99,  ss.  9,  10,  11. 


PRESUMPTIONS.  740 

be  admitted  in  like  manner  in  the  colonies.  And  by  the  same 
statute^  all  judicial  proceedings  of  any  foreign  or  colonial  court, 
and  all  legal  documents  filed  or  deposited  therein,  may  be  proved  by 
a  copy  purporting  to  be  sealed  with  the  seal  of  such  court ;  or,  if 
the  court  has  no  seal,  by  a  copy  purporting  to  be  signed  by  the 
judge  or  one  of  the  judges  of  such  court,  such  judge  stating  on 
such  copy  that  the  court  has  no  seal,  without  further  proof.  Nor  will 
the  courts  notice  the  stamp  upon  the  judge's  order;'  nor  the  seal 
of  the  sheriff;"  nor  the  seal  of  a  corporation  other  than  of  London.'' 
They  also  notice  the  royal  sign  manual  ;^  the  signatures  of  the 
judges  of  the  superior  Courts  of  Law  or  Equity  at  Westminster. '^ 
Before  this  statute,  they  would  only  notice  the  signature  of  a  judge 
of  their  own  court '/  and  also  of  their  own  officers.''  So,  the  courts 
will  of  themselves  notice  the  ^meaning  of  English  words,^  tat  in 
terms  of  art,  legal  weights  and  measures,  money,  the  ordi-  ■-  ^ 
nary  admeasurement  of  time.'*^ 

No  evidence  also  is  necessary  to  prove  any  matter  of  legal  presump- 
tion." 

«S.  7. 

'  Barrett  Navigation  Co.  v.  Shoioer,  8  D.  P.  C.  173. 

"  Bunbury  v.  Matthews,  1  Car.  &  K.  (41  E.  C.  L.  R.)  380. 

^  Moises  V.  Thornton,  8  T.  R.  307 ;  Collins  v.  Carnagie,  1  A.  &  E.  (28  E.  C.  L. 
R.)  695  ;  Couch  v.  Goodman,  2  Q.  B.  (42  E.  C.  L.  R.)  580. 

'  B.  V.  Miller,  2  W.  Bl.  797. 

^8  &  9  Vict.  c.  113,  s.  2. 

y  R.  V.  Hare,  13  EastJ89. 

'■  Howell  V.  Wilkins,  7  B.  &  C.  (14  E.  C.  L.  R.)  783. 

"  See  Angle  v.  Alexander,  7  Bing.  (20  E.  C.  L.  R.)  119. 

'^  Hocking  v.  Cooke,  4  T.  R.  314  ;  Kearney  v.  King,  2  B.  &  Aid.  301 ;  R.  v. 
Swatkins,  4   C.  &  P.  (19  E.  C.  L.  R.)  552. 

"  According  to  the  civil  law,  the  effect  of  a  legal  presumption  is  "  ut  a  proba- 

'  As  to  what  matters  courts  will  judiciously  notice :  see  Dixon  v.  Nicholls,  39 
111.  372  •,  Neaderhouser  v.  State,  28  Md.  257  ;  Witherbee  v.  Dimn,  32  Cal.  106  ; 
Ferdinand  v.  State,  39  Ala.  706  ;  Grob  v.  Cushman,  45  111.  119  ;  State  v.  Sher- 
man, 42  Mo.  210 ;  Wells  v.  Jackson  Co.,  47  N.  H.  235  ;  Carpenter  v.  Dexter,  8 
Wall.  513  ;  Johnson  v.  Robertson,  31  Md.  476 ;  Kessel  v.  Albetes,  56  Barb.  362  ; 
Graham  v.  Williams,  21  La.  Ann.  594  ;  Bethune  v.  Hale,  45  Ala.  522  ;  Dyer  v. 
Last,  51  111.  179  •,  Dewees  v.  Colorado,  32  Tex.  570  ;  U.  S.  v.  American  Gold 
Coin,  1  Woolw.  217  ;  Fauntleroy  v.  Hannibal,  1  Dill  118  ;  Prell  v.  McDonald, 
7  Kans.  426 ;  Bragg  v.  Rush  Co.,  34  Md.  406  ;  Davidson  v.  Peticolas,  34  Tex. 
27  ;  Peo2)le  v.  Johr,  22  Mich.  461 ;  Dole  v.  Wilson,  16  Minn.  525  ;  Lake  Merced 
Water  Co.  v.  Coivles,  31  Cal.  215  ;  Vassault  v.  Seitz,  Ibid.  225  ;  Mossman  v. 
Forrest,  27  Ind.  233  ;  Indianapolis  R.  R.  Co.  v.  Stephen,  28  Ind.  429  ;  Wood- 
ward V.  Chicago  R.  R.  Co.,  21  Wis.  309. 


741  PROOFS. 

The  nature  of  legal  presumptions  will  now  be  considered. 

Evidence,  as  has  been  seen,  is  either  direct,  where  the  witnesses 
testify  as  to  facts  of  which  they  have  had  actual  knowledge  ;  or  it  is 
indirect,  circumstantial  or  presumptive,**  where  the  fact  is  not  proved 
by  direct  evidence,  but  is  inferred  or  deduced  from  one  or  more  other 
facts,  which  are  directly  proved  or  admitted. 

According  to  this  definition,  circumstantial  or  presumptive  evi- 
dence includes  all  evidence  which  is  not  positive  and  direct,  without 
regard  to  its  nature,  intensity  and  degree ;  whether  the  fact  in  issue 
be  a  necessary  consequence  from  the  circumstances  proved,  or 
whether,  on  the  other  hand,  their  tendency  to  establish  the  fact  may 
be  rebutted  by  proof  to  the  contrary ;  whether  the  inference  be  made 
by  virtue  of  some  previously  known  and  ascertained  connection 
between  the  disputed  fact  and  those  which  are  proved,  or  be  a  mere 
deduction  of  reason,  exercised  upon  the  special  circumstances  of  the 

^  „ ,  ^^    case,  either  *with  or  without  the  aid  of  connections  pointed 

[*742]        .  . 

^         -■    out  by  experience. 

A  jjt'esumjjtion  may  be  defined  to  be  an  inference  as  to  the  exist- 
ence of  one  fact,  from  the  existence  of  some  other  fact,  founded  upon 
a  previous  experience  of  their  connection.  To  constitute  such  a  pre- 
sumption, it  is  necessary  that  there  be  a  previous  experience  of  the 
connection  between  the  known  and  inferred  facts,  of  such  a  nature, 
that  as  soon  as  the  existence  of  the  one  is  established,  admitted  or 
assumed,  the  inference  as  to  the  existence  of  the  other  immediately 
arises,  independently  of  any  reasoning  upon  the  subject.  It  also 
follows,  from  the  above  definition,  that  the  inference  may  be  either 
certain,  or  not  certain,  but  merely  probable,  and  therefore  capable  of 
being  rebutted  by  proof  to  the  contrary. 

Presumptions  thus  defined  are  either  legal  and  artificial,  or  natural. 
They  are  artificial,  or  presumptions  of  law,  whenever  they  derive 
from  the  laAV  any  technical  or  artificial  operation  and  effect  beyond 
their  mere  natural  tendency  to  produce  belief,  and  operate  uniformly, 

tione  merito  immunis  sit,  quivel  prsesumptionem  pro  sehabetvel  possessionem." 
— Heinccc.  Pand.  374. 

"^  The  term  presiun2>tive  has  l)een  used  in  this  sense  by  English  lawyers,  in 
contradistinction  to  positive  and  direct  evidence,  and  consequently  as  including 
all  evidence  whatsoever  arising  from  circumstances,  -whether  conclusive  or  in- 
conclusive in  its  nature  :  see  Co.  Litt.  6  ;  Staunf.  179  ;  3  Comm.  371 ;  17  How. 
St.  Tr.  1430;  1  St.  Tr.  181.  Lord  Coke,  when  he  speaks  of  violent,  probable, 
and  light  presumptions  (Co.  Litt.  0),  evidently  means,  not  presumptions  in  their 
strict  technical  sense,  but  presumptive  or  circumstantial  evidence.  And  see  the 
able  work  of  Mr.  Best  "  On  Presumptions." 


PRESUMPTIONS.  742 

without  applying  the  process  of  reasoning  on  which  they  are  founded 
to  the  circumstances  of  the  particular  case.  They  are,  on  the  other 
hand,  natural  where  they  act  merely  by  virtue  of  their  own  natural 
efficacy.  For  instance,  whenever  a  particular  presumption  arises 
from  the  lapse  of  a  defined  space  of  time,  it  is  always  in  its  nature 
artificial ;  for  the  evidence,  when  left  to  its  own  natural  efficacy,  is 
not  confined  within  arbitrary  and  artificial  boundaries.  Thus,  at 
the  expiration  of  twenty  years,  without  payment  of  interest  on  a 
bond,®  or  other  acknowledgment  of  its  existence,  satisfaction  was  to  be 
presumed;  but  if  a  single  day  less  than  twenty  years  had  elapsed, 
the  presumption  of  satisfaction  from  mere  lapse  of  time  did  not  arise. 
This  is  obviously  an  artificial  and  arbitrary  distinction.  No  man's 
mind  is  so  constituted  that  the  mere  lapse  of  the  single  day  which 
completes  the  twenty  years  would  absolutely  *generate  in  it 
a  conviction  or  belief  that  the  debt  had  been  satisfied.  But  ■-  ^ 
again  ;  satisfaction  may  be  inferred  from  the  lapse  of  a  shorter 
period,  if  it  be  rendered  probable  by  other  circumstances;  for  in- 
stance, from  the  lapse  of  nineteen  years;  here  the  lapse  of  time  is  to 
be  taken  into  the  account  by  the  jury,  in  estimating  the  probability 
whether,  under  all  the  circumstances,  the  debt  has  not  been  satisfied. 
Here,  however,  the  lapse  of  time  possesses  no  artificial  or  arbitrary 
operation,  but  is  left  to  its  mere  natural  tendency,  to  convince  the 
minds  of  the  jury  that  the  debt  has  been  satisfied.^ 

•  Before  the  3  &  4  Will.  IV.  c.  42. 

^  As  artificial  or  lec^al  presumptions  are  founded  partly  upon  principles  of  policy 
and  utility,  Independently  of  the  real  existence  of  the  fact  inferred,  and  conse- 
quently, as  such  presumptions  must  occasionally,  at  least,  be  made  contrary  to 
to  the  real  truth,  It  follows,  that  these  presumptions  cannot,  consistently  with 
just  principles,  be  established,  unless  either  the  real  fact  be  immaterial,  as 
where  the  presumption  Is  made  merely  for  the  purpose  of  annexing  a  legal  con- 
sequence to  the  fact  on  which  the  presumption  Is  founded  ;  or  where  the  fact  to 
be  presumed  being  material,  but  Its  Investigation  dIfScult  and  remote,  a  general 
rule  of  presumption  can  be  established  of  practical  convenience,  and  consistent 
with  justice,  although  it  may  occasionally  operate  contrary  to  the  truth.  In  the 
first  place,  presumptions  are  frequently  made  for  the  mere  purpose  of  annexing 
a  legal  incident  to  a  particular  predicament  of  fact.  If  the  fact  B.,  to  which  a 
particular  legal  consequence  Is  annexed,  be  absolutely  or  conditionally  presumed 
from  the  existence  of  the  fact  A.^  it  Is  obvious  that  the  efi'ect  Is  to  annex  to  the 
fact  A.  the  legal  consequence  which  belongs  to  B.  The  making  of  such  pre- 
sumptions, and  thus  annexing  legal  consequences,  Is  an  indirect  mode  of  legis- 
lation ;  and  in  estimating  the  legal  value  of  such  a  presumption,  it  Is  plain  that 
the  Intermediate  or  presumed  fact  may  be  left  out  of  the  account ;  the  question 
Is,  whether  a  legal  consequence  be  well  connected  with  a  particular  predicament 
in  fact ;  in  other  words,  whether  a  rule  of  law  be  wisely  constituted.     Thus,  if 


744  PROOFS. 

"^Artificial  or  legal  presumptions  are  also  of  two  kinds, 
L         J    immediate   and    mediate.     Immediate   are  those  which   are 

from  the  adverse  possession  of  an  incorporeal  interest  in  the  lands  of  another, 
unanswered,  a  grant  is  to  be  presumed,  the  effect  is  to  annex  ownership  as  an 
incident  to  such  adverse  possession  unanswered  ;  for  the  supposed  grant  is  mere 
fiction,  or  legal  machinery,  and  the  only  question  is,  whether  the  legal  conse- 
quences really  incident  to  a  valid  grant  are  well  annexed  to  such  a  state  of  facts. 
Again,  in  trover,  a  conversion  of  the  plaintifi^'s  property  is  to  be  inferred  by  a 
jury,  from  the  fact  of  a  demand  by  the  owner,  and  refusal  on  the  part  of  the 
defendant  who  is  in  possession  of  it,  such  refusal  being  unexplained.  Here, 
the  predicament  on  which  the  presumption  is  built  renders  the  fact  presumed  in 
reality  immaterial,  where  the  defendant  Avilfully  withholds  the  plaintiff's  pro- 
perty ;  it  is  of  no  importance  to  the  real  justice  of  the  case,  as  between  the 
parties,  to  what  use  the  defendant  may  have  applied  the  property,  whether  he 
has  consumed  the  goods,  or  allowed  them  to  perish  in  the  course  of  nature. 
The  effect  in  such  cases  is  merely  to  annex  to  one  fact  a  legal  incident  annexed 
by  law  to  another  fact,  to  which  the  former  is  in  all  respects  equivalent.  Such 
presumptions  are  also  well  founded  in  principle  where  the  investigation  of  a 
fact  is  difficult  and  precarious,  and  where  a  general  rule  of  practical  utility  can 
be  established,  without  occasioning  positive  injustice  in  individual  instances. 
Within  this  principle,  all  statutes  of  limitation,  and  the  presumptions  made 
in  analogy  to  them,  are  founded.  The  difiBculty  of  proving  a  debt  constantly 
increases  with  lapse  of  time,  and  may  at  last  become  impossible  ;  whilst,  on  the 
other  hand,  the  probability  that  he  who  makes  no  claim  of  payment  or  posses- 
sion has  a  right  to  make  it,  continually  diminishes.  Convenience,  therefore, 
requires  that  at  some  period  or  other  the  presumption  should  be  made,  either 
absolutely  or  otherwise,  against  the  antiquated  claim.  And  as  such  a  rule  or 
presumption  must  be  general  in  its  operation,  a  precise  and  definite  period  must  of 
course  be  appointed  for  its  operation.  The  great  advantages  of  this  in  point  of 
policy  and  convenience  are  of  the  most  obvious  nature.  The  operation  of  such  a 
rule,  whether  it  be  absolute,  or  be  but  ^  prima  facie  presumption,  being  purely 
artificial  in  its  nature,  may  be,  it  is  true,  contrary  to  the  fact ;  but  of  this,  a  party 
who  knew  the  rule,  and  who  suffers  therefore  merely  from  his  own  laches,  has 
no  just  ground  for  complaint.  On  this  ground,  by  the  Stat.  1  Jac.  I.  c.  11,  s.  2, 
19  Car.  II.  c.  6,  a  person  who  has  been  abroad  for  the  space  of  seven  years,  and 
has  not  been  heard  of  within  that  time,  is,  at  the  expiration  of  it,  presumed  to 
be  dead  :  a  rule  of  convenience,  on  account  of  the  difficulty  of  proving  the  death 
of  a  person  under  such  circumstances,  and  attended  with  no  positive  injustice  in 
any  individual  case,  the  presumption  operating  only  in  the  absence  of  proof  to  the 
contrary.  On  the  same  principles  were  founded  the  decisions  of  the  Roman  law 
in  those  nice  cases  which  sometimes  happen,  where  it  is  impossible,  with  any 
approach  to  certainty,  to  decide  which  of  two  persons,  who  died  very  nearly  at 
the  same  time,  survived  the  other.  Cum  bollo  pater  cum  filio  periisset,  materque 
filii  quasi  postea  mortui  bona  vindicaret,  agnati  vero  patris  quasi  filius  antea 
periisset,  iJivus  Iladrianus  credidit,  patrem  prius  esse  mortuum  :  L.  9,  s.  1,  ff.  de 
reVj.  dub.  And  again,  Mulier  naufragiocum  annicolo  nlio  periitquiaverisimile 
videbatur,  ante  matrem  infantcm  pcriisse,  virum  partem  dotis  retinere  placuit : 
L.  23,  U".  de  pac.  dot. ;  see  tit.  Deatu,  Vol.  II.     In  such  cases  a  general  rule  is 


PRESUMPTIONS.  745 

*made  by   the  law  itself,    directly,  and   without  the   aid  of 


a  jury.     Mediate  presumptions  are  those  which  cannot   be 


[*745] 


preferable  to  laborious  investi<!;ation  in  each  individual  case,  where  the  result 
must  always  be  subject  to  doubt  and  uncertainty. 

It  has  been  said,  that  the  presumption  of  the  law  is  better  than  that  of  man 
(Esprit  des  Loix,  1.  29,  c.  16),  A  position  much  too  lar<fe,  if  it  be  not  limited  to 
f^eneral  rules  of  the  nature  above  alluded  to.  For  artificial  presumptions,  although 
beneficial,  as  general  and  practical  rules,  are  usually  very  uncertain  and  precari- 
ous instruments  for  the  investigation  of  truth  in  particular  instances  ;  they  are, 
therefore,  unfit  to  be  employed  where  any  application  of  the  law,  contrary  to  the 
real  fact,  would  be  attended  with  positive  injustice,  as  in  criminal  cases.  Where 
facts  are  not  necessarily  connected,  the  connecting  of  them  by  means  of  artificial 
presumption  must  sometimes  lead  to  error  in  fact.  Where  facts  are  necessarily 
or  usually  connected,  technical  presumptions  are  unnecessary  ;  the  common  sense 
and  experience  of  mankind  will  lead  them  to  the  proper  conclusions,  giving  to 
such  natural  presumptions  such  weight  as  experience  warrants,  confirmed  as  they 
are  on  the  one  hand,  or  impeached  on  the  other,  by  the  whole  context  of  circum- 
stances belonging  to  the  case.  It  is  also  to  be  observed,  that  presumptions  vrhich 
tend  to  the  actual  investigation  of  such  facts  as  are  usually  the  subject  of  litiga- 
tion in  courts  of  justice,  are  of  a  very  general  nature,  and  seldom,  if  ever,  conclu- 
sive. Thus  presumptions,  and,  strong  ones,  are  constantly  founded  on  a  know- 
ledge of  mankind  ;  a  man's  motives  are  inferred  from  his  acts,  and  his  conduct 
from  the  motives  by  which  he  was  known  to  be  influenced ;  it  is  presumed,  that 
a  rational  agent  intended  the  consequence  which  his  acts  naturally  tended  to 
accomplish  ;  that  he  consults  his  own  interests  ;  that  if  he  pays  or  acknowledges 
a  debt  it  is  really  due  ;  that  if  he  admits  himself  to  be  guilty  of  a  crime,  the  ad- 
mission is  true  ;  that  he  does  not  commit  a  crime,  or  do  any  other  act  which  tends 
to  his  prejudice,  without  a  motive.  Presumptions  of  this  nature,  in  almost  every 
case  of  circumstantial  evidence,  aiford  a  light  which  may  be  considered  to  be 
absolutely  essential  to  the  discovery  of  truth  ;  but  then  they  operate  simply  by 
their  own  intrinsic  efficacy,  as  ascertained  by  experience,  and  never  so  conclu- 
sively as  to  form  the  basis  of  an  artificial  rule  which  is  to  operate  invariably. 
All  natural  presumptions  are  founded  in  experience ;  but  so  infinitely  are  the 
transactions  of  mankind  complicated  and  varied,  that  such  an  experience  of  the 
necessary  or  even  ordinary  connection  between  particular  facts  as  will  serve  for 
the  basis  of  a  prima  facie  presumption,  still  less  of  a  conclusive  inference,  is 
unattainable,  even  in  the  most  simple  instances.  So  far  is  experience  from  war- 
ranting such  presumptions,  that  it  evinces  their  inefficacy  by  showing  that  a 
general  presumption  would  frequently  be  a  fallacious  one.  There  is  no  subject 
for  presumption  of  more  ordinarry  occurrence  than  is  afforded  by  the  prisoner's 
recent  possession  of  stolen  goods,  on  prosecution  for  larceny  ;  no  facts,  perhaps, 
are  more  closely  and  usually  combined,  in  legal  experience,  than  is  the  fact  of 
such  recent  possession  of  the  property  by  the  prisoner,  with  the  fact  that  he 
stole  it ;  yet  this  connection,  although  usual,  is  by  no  means  necessary,  as  expe- 
rience proves  ;  no  artifical  presumption  can  therefore  be  founded  on  such  a  con- 
nection ;  the  law,  it  is  true,  recognizes  it,  and  the  judge  usually  comments  upon 
its  nature  and  force ;  but  no  artificial  weight  or  importance  is  annexed  to  it,  and 
the  juries  do  not  convict  unless  they  are  fully  satisfied  and  convinced  of  the 


746  PROOFS. 

*made  but  bj  the  aid  of  a  jury.  Thus,  the  law  itself  pre- 
•-         -J    sumes   that   a   bond,    or   other  specialty,  was   made  upon  a 

good  consideration;  but  the  common  law  never  presumed 
L  J  *from  the  lapse  of  twenty  years,  without  any  payment  of 
interest  on  a  bond,  or  acknowledgment  of  its  existence,  that  it  had 
been  satisfied;  that  presumption  was  left  to  a  jury.  Presumptions 
may  therefore  be  divided^  into  three  classes:  1st.  Legal  presumptions 
made  by  the  law  itself,  or  presumptions  of  mere  law.  2dly.  Legal 
presumptions  made  by  a  jury,  or  presumptions  of  law  and  fact. 
3dly.  Mere  natural  presumptions,  or  presumptions  of  mere  fact. 

First.  Presumptions  of  mere  laiv,  are  either  absolute  and  conclu- 
sive, which  correspond  with  the  prcesumptiones  juris  et  de  jure  of  the 
Roman  law;  or  like  the  2yrcesu7nptio7ies  juris  of  the  Roman  law,  they 
may  be  rebutted  by  evidence  to  the  contrary.  Thus,  the  presumption 
of  laAT,  that  a  bond  or  other  specialty  was  executed  upon  a  good  con- 
sideration, cannot   be  rebutted  by  evidence;''  but  although  the  law 

actual  guilt  of  the  prisoner.  Artificial  presumptions,  therefore,  can  never  be 
safely  established  as  a  means  of  proof  in  a  criminal  case.  To  convict  an  innocent 
man  is  an  act  of  positive  injustice,  which,  according  to  one  of  the  best  and  most 
humane  principles  of  our  law,  cannot  bo  expiated  by  the  conviction  of  an  hun- 
dred criminals  Avho  might  otherwise  have  escaped :  2  Hale  289.  From  such 
presumptions  the  common  law  is  justly  most  abhorrent ;  and  happily  our  statute 
book  has  not  been  disgraced  by  many  violations  of  the  humane  principles  of  the 
common  law  in  this  respect.  The  abominable  and  sanguinary  enactments  of 
the  statute  of  James  the  First  (21  Jac.  I.  c.  27),  which  made  the  concealment 
of  a  bastard  child  by  the  mother,  evidence  that  she  mui'dered  it,  no  longer  exists. 
But  it  is  impossible,  without  a  feeling  of  indignation,  to  recollect  that  such  a 
statute  did  exist  as  the  law  of  this  country  for  nearly  two  centuries  ;  the  natural 
effect  of  which  was  to  leave  a  court  and  jury  no  other  alternative  than  either 
to  violate  their  oaths,  or  to  execute  one  for  mui-der  whom  in  their  consciences 
they  believed  to  be  innocent. 

s  So  according  to  the  Roman  law,  "  Praesumptio  conjectura  est  ducta  ab  eo 
quod  ut  plurimum  fit.  Ea  vel  a  Le(/e  inducitur,  vel  a  Judice.  Quae  ab  ipsa 
lege  inducitur  vel  ita  comparata  est  ut  probationem  contrarii  hand  admittat  vel 
ut  eadem  possit  elidi.  Priorem  doctores  prjBsumptionem  juris  adpellant.  Quae 
a  judice  inducitur  conjectura  praesumptio  horainis  adpellari  solet,  et  semper 
admittit  probationem  contrarii  quamvis  si  alicujus  momenti  sit  probandi  onere 
relevet:  Ileineccius  El.  J.  C,  p.  4,  s.  122. 

*"  Loioe  v.  Peers,  4  Burr.  2225  ;  i.  e.  so  long  as  the  deed  remains  unimpeached ; 
a  bond  or  other  specialty  may  be  directly  impeached,  on  the  ground  of  fraud; 
and  then  the  consideration  may  become  the  subject  of  inquiry  ;  but  whilst  the 
legal  existence  of  the  deed  stands  admitted,  the  presumption  of  a  good  con- 
sideration is  peremptory  and  absolute.  After  a  verdict  for  the  plaintiff,  or 
defendant,  the  court  will  presume  all  things  necessary  to  support  the  declara- 
tion or  plea:   ,SweeiappIe  v.  Jease,   5  B.  &  Ad.  (27  E.  C.  L.  R.)  27  ;  Harris  v. 


PRESUMPTIONS    OF    LAW    AND     FACTS.  747 

also  presumes,  or  intends,  that  a  bill  of  exchange  was  accepted  on  a 
good  consideration,   that  presumption  may  be  rebutted  by  proof  to 
the  contrary.   Thus,  also,  it  is  a  presumption  not  to  be  rebutted,  that 
a  child  under  fourteen  *cannot  commit  a  rape,'  and  that  an 
infant  under  seven  cannot  commit  felony.''  L  -' 

Artificial  presumptions,  made  by  the  law  itself,  are  not  in  general 
used  as  rules  of  evidence  for  the  purpose  of  ascertaining  doubted 
facts  ;  but  are,  in  effect,  mere  arbitrary  rules  of  law,  which,  according 
to  the  policy  of  the  law,  operates  in  some  instances  conclusively,  and 
which,  in  other  instances  again,  where  peremptory  and  absolute 
operation  would  be  attended  with  inconvenience,  may  be  answered 
and  rebutted.  The  connection  between  mere  natural  facts  cannot  be 
known,  but  from  actual  observation  and  experience;  but  purely  arti- 
ficial relations,  such  as  legal  incidents  and  consequences,  the  mere 
creatures  of  positive  law,  may  be  indissolubly  tied  and  connected 
together  by  the  rules  of  law.  A  law,  or  rule  of  law,  consists  in 
nothing  more  than  the  connecting  of  certain  consequences  with  par- 
ticular defined  predicaments  of  fact.  When,  therefore,  the  laAv  pre- 
sumes or  infers  any  fact  to  which  a  legal  consequence  is  annexed, 
from  any  defined  predicament  of  facts,  the  law  in  effect  indirectly 
annexes  to  that  predicament  the  legal  consequences  which  belongs  to 
the  presumed  fact.^ 

Again,  in  many  instances  presumptions  of  law  are  but  primd  facie 

inferences  or  intendments,  made  by  the  courts,  liable  to  be  rebutted 

by  proof  to  the  contrary.     Thus,  the  law  will  intend,  or  imply,  that 

the  heir-at-law  of  an  ancestor,  who  died  seised  of  an  estate,  was  in 

possession  ;™  or  where  a  fine  has  been  levied,  will  imply  that  it  has 

been  levied  with  proclamations  ;"  or  that  the  examination  of  *a 

...  r*7491 

prisoner,  under  a  charge  of  felony,  has  been  taken  in  writing,"    •-  -• 

Goodwi/n,  2  M.  &  G.  (40  E.  C.  L.  R.)  405;  see  Stennel  v.  Hogg,  1  Wins.  Saund. 
228,  note. 

'  R.  V.  Groomhridge,  7  C.  &  P.  (32  E.  C.  L.  R.)  582. 

"  4  Bl.  Com.  2;^. 

'  Supra,  p.  743,  note  (/). 

"■  Watkins  on  Descents,  ch.  1,  p.  35. 

°  3  Co.  86,  b.  But  if  the  intendment  be  rebutted,  proclamations  must  be 
proved,  in  order  to  bar  a  stranger  :  B.  N.  P.  229.  The  acceptance  of  rent  from 
a  third  person  is  not  a  ground  for  presuming  a  surrender :  Copelaiid  v.  JVatts 
and  another,  Exectitors  of  Gubbins,  1  Stark.  C.  (2  E.  C.  L.  R.)  95.  The  non- 
production  of  books  upon  notice  merely  entitles  the  opposite  parties  to  give 
secondary  evidence.  It  does  not  authorize  the  jury  to  speculate  upon  the 
probable  contents :   Cooper  and  another  v.  Gibbons,  3  Camp.  C.  363. 

"  Tit.  Ad.missions. 


749  PROOFS. 

until  the  contrary  of  these  facts  be  proved.  Presumptions  of  this 
nature  may  be  rebutted  not  only  by  evidence  to  the  contrary,  but 
also  by  contrary  presumptions  or  intendments  of  law.  Thus,  on  an 
indictment  for  the  non-repair  of  a  road,  the  presumption  that  an 
award  in  relief  of  the  defendants  was  duly  made  according  to  the 
directions  of  an  enclosure  act,  may  be  rebutted  by  proof  of  repairs 
subsequently  done  to  the  road  by  the  defendants.^  But  the  presump- 
tion in  favor  of  innocence  is,  it  has  been  held,  too  strong  to  be  over- 
come by  an  artificial  intendment  of  law.*^ 

Secondly,  Presumptions  of  law  and  fact. — These  are  also  artificial 
presumptions  which  are  recognized  and  warranted  by  the  law  as  the 
proper  inferences  to  be  made  by  juries  under  particular  circumstances. 
These  are  also  founded  partly  upon  principles  of  policy  and  conve- 
nience, and  frequently  in  analogy  to  express  rules  of  law  ;  and  for 
this  purpose  a  technical  force  and  efficacy  is  given  to  the  evidence 
which  warrants  such  presumption,  beyond  its  mere  natural  tendency 
to  convince  the  mind.  Two  incidents  are  essential  to  presumptions 
of  this  class :  1st.  The  inference  cannot  be  made  by  the  court,  but 
ought  to  be  made  by  the  jury.  2dly.  The  inference  is  never  con- 
clusive. 

Presumptions,  therefore,  of  this  kind  are  very  closely  allied  to 
those  artificial  presumptions  which  are  made  by  the  law  itself,  but 
which  are  in  their  nature  inconclusive,  that  is,  to  the  prcesurnptiones 
juris  of  the  Roman  law."^  They  are  of  a  class  intermediate  between 
mere  artificial  *presumptions  made  by  the  law  itself,  and 
L  -^  mere  natural  presumptions,  which  are  to  be  made  exclusively 
by  a  jury.  They  may,  therefore,  not  improperly  be  called  mixed 
presumptions,  or  presumptions  of  law  and  fact,  partaking  of  the 
nature  of  mere  legal  presumptions,  in  this  respect,  that  they  are  arti- 
ficial, and  of  the  nature  of  mere  natural  presumptions,  inasmuch  as 
they  must  be  made,  not  by  the  court,  but  by  a  jury.  The  principle 
and  origin  of  this  class  of  presumptions  are  usually  not  remote  ;  they 
are  for  the  most  part  instruments  in  the  hands  of  the  courts,  by 
which  positive  statutes,  or  rules  of  law,  are  extended  by  analogy  to 
cases  which  do  not  fall  within  their  express  legal  operation,  or  by 
means  of  which  effect  is  given  to  rules  of  evident  policy  and  conve- 

P  R.  V.  Inhabitants  of  Haslingfield,  2  M.  &  S.  558. 

*•  R.  V.  Twining,  2  B.  &  Aid.  386  ;  and  see  as  to  the  presumption  that  a  legal 
duty  was  performed:  R.  v.  Whiston,  4  M.  &  G.  (48  E.  C.  L.  R.)  607;  R.  v. 
Wittiqi,  5  A.  &  E.  (31  E.  C.  L.  R.)  191. 

'  Siqyra,  p.  747,  note  {y). 


[*751] 


PRESUMPTIONS  —  NATURAL.  750 

nience,  which  caijnot  be  applied  directly/  Thus,  a  jury  is  required 
or  at  least  advised,  by  the  court,  to  infer  a  grant  of  an  incorporeal 
hereditament  after  an  adverse  enjoyment  for  the  space  of  twenty 
years  unanswered.'^  This  is  done  in  analogy  to  the  Statute  of  Limi- 
tations, 21  Jac.  I. ;  for  as  an  adverse  possession  of  twenty  years  is 
sufficient  to  confer  a  title  to  the  possession  of  the  land  itself,  a  for- 
tiori it  ought  to  confer  a  right  to  an  interest  arising  out  of  the  land  ; 
but  that  Statute  of  Limitations  does  not  extend  to  this  case,  and 
therefore  the  benefit  and  convenience  of  such  a  limitation  was  ob- 
tained indirectly,  by  thus  raising  an  artificial  presumption."  Pre- 
sumptions of  this  nature,  which  depend  merely  on  acquiescence  for 
a  specific  and  definite  period  of  *time,  of  arbitrary  appoint- 
ment, are  most  obviously  artificial ;  their  operation  may  de- 
pend on  the  lapse  of  a  few  hours,  more  or  less. 

So,  in  the  case  of  trover ;  an  unqualified  refusal  to  deliver  up  the 
goods  on  demand  made  by  the  owner,  does  not  fall  within  any  defini- 
tion of  a  conversion  ;  but  inasmuch  as  the  detention  is  attended 
with  all  the  evils  of  a  conversion  to  the  owner,  the  law  makes  it,  in 
its  effects  and  consequences,  equivalent  to  a  conversion,  by  directing 
or  advising  the  jury  to  infer  a  conversion  from  the  facts  of  demand 
and  refusal. 

Thirdly.  Natural  presumptions,  or  presumptions  of  mere  fact. 
These  depend  upon  their  own  natural  force  and  efficacy  in  generating 
belief  or  conviction  in  the  mind,  as  derived  from  those  connections 
which  are  pointed  out  by  experience;^  they  are  wholly  independent 
of   any  artificial    legal  relations   and    connections,  and    differ    from 

^  For  instances  of  the  latter  description,  vide  supra,  note  {f). 

*  Lord  Tenterden's  Act,  2  &  3  Will.  IV.  c.  71,  provides  fixed  periods  of 
limitation  in  many  of  these  cases  :  see  tit.  Prescription. 

"  The  presumption  that  a  bond  had  been  satisfied  after  the  expiration  of 
twenty  years  from  the  time  when  interest  had  been  paid,  or  other  acknowledg- 
ments made  of  its  existence,  was  built  on  the  same  principle :  vide  supra;  pp. 
742,  743;  and  see  Searle  v.  Lord  Barrington,  2  Str.  826;  2  Ld.  Raym.  1370; 
Turner  v.  Crisp,  2  Str.  827 ;  Moreland  v.  Bennett,  Str.  652 ;  Washington  v. 
Brymer,  Peake's  Adv.  C.  201.  This  case  is  now  provided  for  by  3  &  4  Will. 
IV.  c.  42,  s.  3,  which  establishes  this  period  of  limitation. 

^  These,  no  doubt,  form  the  basis  of  numerous  legal  presumptions.  Thus  it 
is  presumed  that  a  party  will  adopt  acts  done  for  his  benefit :  Bailey  v.  Culver- 
ivell,  8  B.  &  C.  (15  E.  C.  L.  R.)  448. 

^  The  doctrine  of  prescription  or  presumption  of  grant  from  lapse  of  time 
can  have  no  application  to  a  case  of  underground  waters  percolating,  oozing  or 
filtering  through  the  earth :  Frazier  v.  Brown,  12  Ohio  (N.  S.)  294. 
44 


751  PROOFS. 

presumptions  of  mere  law  in  this  essential  respect,  that  those  depend 
upon,  or  rather  are,  a  branch  of  the  particular  system  of  jurispru- 
dence to  which  they  belong ;  but  mere  natural  presumptions  are  de- 
rived wholly  by  means  of  the  common  experience  of  mankind,  from 
the  course  of  nature  and  the  ordinary  habits  of  society.  Such  pre- 
sumptions are,  therefore,  wholly  independent  of  the  system  of  laws 
to  be  applied  to  the  facts  when  established  ;  they  remain  the  same 
in  their  nature  and  operation,  whether  the  law  of  England,  or  the 
code  of  Justinian,  is  to  decide  upon  the  legal  effect  and  quality  of 
the  facts  when  found. 

Many  presumptions  of  this  class  are  recognized  by  the  law,  and 
therefore,  in  one  sense,  may  be  termed  legal  presumptions,  which 
still,  unless  some  degree  of  technical  force  and  weight  be  given  them 
beyond  their  mere  natural  operation,  are  properly  to  be  ranked  in 
this  class.  The  recent  possession  of  stolen  goods,  on  a  trial  for  lar- 
r*7^91  ^®^y'  ^^  *recognized  by  the  law  as  affording  a  presumption 
of  guilt;  and,  therefore,  in  one  sense,  is  a  presumption  of 
law,  but  it  is  still,  in  effect,  a  mere  natural  presumption  ;  for,  al- 
though the  circumstance  may  weigh  greatly  Avith  a  jury,  it  is  to 
operate  solely  by  its  own  natural  force,  for  a  jury  are  not  to  convict 
on  this  or  any  other  charge,  unless  they  be  actually  convinced  in 
their  consciences  of  the  truth  of  the  fact.  Such  a  presumption  is 
therefore  essentially  different  from  the  legal  presumptions  in  fact 
lately  adverted  to,  where  the  jury  were  to  infer  that  a  bond  had  or 
had  not  been  satisfied,  as  a  few  days  or  even  hours,  more  or  less,  had 
elapsed. 

Although  it  be  the  peculiar  province  of  a  jury  to  deal  with  pre- 
sumptions of  this  description,  and  to  make  such  inferences  as  their 
experience  warrants,  yet  in  some  instances,  where  particular  facts 
are  inseparably  connected  according  to  the  usual  course  and  order  of 
nature,  and  the  interposition  of  a  jury  would  be  nugatory,  the  courts 
themselves  will  draw  the  inference.  Thus,  on  a  question  of  bastardy, 
where  the  child  has  been  born  within  a  few  weeks  after  the  access  of 
the  husband,  the  bastardy  of  the  child  will  be  inferred  without  the 
aid  of  a  jury.^ 

Presumptions  of  this  nature  are,  as  has  already  been  observed,  co- 
extensive with  the  experience  of  mankind;  there  is  in  fact  no  rela- 
tion whatsoever,  whether  natural  or  artificial,  subject  to  human 
observation,  which  may  not  be  proved,  where  such  proof  is  material, 
in  a  court  of  justice,  by  the  testimony  of  those  who  have  had  expe- 
rience of  that  relation. 

y  It.  V.  Lvffc,  8  East  193. 


PRESUMPTIONS  —  NATURAL.  752 

A  mere  presumption,  in  the  proper  and  technical  sense  of  the  ivord, 
is  much  more  limited  in  its  nature  than  presumptive  or  circumstantial 
evidence  in  general.  A  presumption,  strictly  speaking,  results  from 
a  previously  known  and  ascertained  connection  between  the  presumed 
fact  and  the  fact  from  which  the  inference  is  made,  ""without  r^ycq-i 
the  intervention  of  any  act  of  reason  in  the  individual  in- 
stance; on  the  other  hand,  circumstantial  evidence,  that  is,  indirect 
evidence  to  prove  a  fact,  may  depend  wholly  on  a  process  of  reason- 
ing applied  to  the  facts  of  the  particular  case,  although  the  mind 
may  never  have  experienced  such  a  combination  before.  The  instance 
put  by  Lord  Coke,'°  of  what  he  terms  a  violent  presumption,  is,  in 
reality,  a  case  of  indirect  or  circumstantial  evidence,  but  not  properly 
presumption  in  the  strict  sense  of  the  word,  because  the  inference 
results  from  an  act  of  reason,  exercised  upon  the  facts,  and  not  upon 
any  known  and  ascertained  relations.  The  instance  which  he  gives 
of  a  violent  presumption  is  this:  "where  a  man  is  found  suddenly 
dead  in  a  room,  and  another  is  found  running  out  of  that  room  with 
a  bloody  sword  in  his  hand."  It  is  plain  that  in  such  a  case  con- 
viction is  wrought  by  an  exercise  of  the  reason  upon  the  circumstances 
(however  small  the  effort)  by  which  the  mind,  upon  the  slightest 
reflection,  excludes  all  guilty  agents  but  one:  the  excluding  force 
and  nature  of  the  circumstances  generate  conviction  by  negativing,  to 
the  satisfaction  of  the  mind,  the  agency  of  any,  but  one  individual. 
It  is  evident  that  a  witness  who  had  never  seen  such  a  transaction 
before  would  as  readily  come  to  the  proper  conclusion,  as  one  who 
had  actually  had  experience  of  similar  facts ;  and  consequently  that 
reason,  and  not  any  previous  experience  of  similar  associations,  sup- 
plies the  inference. 

In  practice,  however,  it  rarely  happens  that  some  natural  pre- 
sumption, properly  so  called,  does  not  co-operate  with  the  exercise 
of  reason  on  the  particular  circumstances  to  produce  conviction. 
And  on  the  other  hand,  those  transactions  which  are  the  subject  of 
judicial  inquiry,  and  indeed  all  human  dealing,  present  such  an 
infinite  variety  of  circumstances,  that  experience  alone,  however 
essential  and  important,  as  undoubtedly  it  is,  in  supplying  inferences 
*which  tend  to  the  general  conclusion,  can  rarely  simply  and 
alone,  without  the  aid  of  sound  reason  and  discretion  exer-  ■-  ^ 
cised  upon  all  the  circumstances,  warrant  a  conclusion.  It  follows, 
that  further  remarks  on  mere  natural  presumptions  belong  properly 
to  the  head  of  circumstantial  evidetice. 

It  seems  to  be  a  general  rule,  that  wherever  there  is  evidence  on 

■^  Co.  Litt.  6. 


754  PROOFS. 

which  a  jury  has  founded  a  presumption  according  to  the  justice  of 
the  case,  the  courts  will  not  grant  a  new  trial.  In  an  action  on  a 
promissory  note,  given  to  the  plaintiff  by  the  defendant,  in  conside- 
ration of  the  plaintiff's  marrying  his  daughter;  the  defence  was  that 
the  marriage  was  not  a  legal  one,  the  plaintiff  having  married  the 
daughter  when  he  was  under  age,  and  without  the  consent  of  his 
parents  or  guardian.  It  also  appeared,  that  when  the  plaintiff  came 
of  age,  the  wife  was  lying  on  her  death-bed,  and  that  she  died  in 
three  weeks  afterwards.  The  jury  nevertheless  presumed  a  subse- 
quent legal  marriage,  and  the  court  afterwards  refused  to  set  aside 
the  verdict.*  But  it  must  be  borne  in  mind  that  there  is  a  strong 
legal  presumption  in  favor  of  marriage.'' 

Many  of  the  presumptions  which  are   recognized  by  the  law  are 
noticed  under  the  particular  subject  of  evidence  to  *which 
L         -I    they  belong;"  it  may,  however,  be  proper  to  advert  to  some 
of  the  most  general. 

The  law  of  England,  as  well  as  the  civil  law,  presumes  against 
fraud,  "  odiosa  et  inhonesta  non  sunt  m  lege  prcesumenda,  et  in  facto 
quod  in  se  Jiabet  et  honum,  et  malu7n,  magis  de  bono,  quam  de  malo, 
prcesumendum  est."^  Thus,  where  bankers  had  been  in  the  habit  of 
discounting  bills  for  a  person,  who,  on  one  occasion,  sent  his  clerk 
with  the  bill  on  which  the  action  was  brought  to  inform  them  that  his 
taking  the  bill  from  the  plaintiff  would  depend  upon  their  discount- 
ing it,  and  to  inquire  whether  they  would  discount  it,  and  they, 
without  giving  any  answer  to  the  clerk,  afterwards  placed  the  bill  to 
his  credit;  in  an  action  of  trover  against  them  for  the  bill,  it  was  held 
that  they  must  be  presumed  to  be  bond  fide  holders,  and  also  that 
they  had  acted  honestly,  and  consequently  it  could  not  be  presumed 

*  Wilkinson  v.  Fai/ne,  4  T.  R.  468.  Lord  Kenyon,  in  that  case,  said  the  rule 
was  carried  so  far  that  he  remembered  an  instance  of  it  bordering  on  the 
ridiculous,  where,  in  an  action  on  the  game  laws,  it  Avas  suggested  that  the  gun 
with  which  the  defendant  fired  was  not  charged  with  shot,  but  that  the  bird 
might  have  died  in  consequence  of  fright;  and  the  jury  having  found  for  the 
defendant,  the  Court  refused  to  grant  a  new  trial ;  see  also  Standen  v.  Standen, 
cited  4  T.  R.  469,  where  a  marriage  was  presumed,  although  there  was  strong 
evidence  to  show  that  there  had  not  been  time  enough  for  a  publication  of  banns 
three  times.  It  may,  however,  be  very  questionable  whether  such  decisions 
are  not  only  contrary  to  sound  policy,  but  even  positively  mischievous.  Do 
they  not  afford  temptation  to  juries,  in  hard  cases,  to  trifle  with  the  sacred 
obligation  of  an  oath?  And  the  old  rule  cannot  now  be  supported:  see  per 
Parke,  B.,  Doe  v.  Bavies,  2  M.  &  W.  511  ;  and  tit.  New  Trial. 

•*  See  Fiers  v.  Piers,  2  II.  of  L.  Cases  ;:531. 

"  Sec  tit.  Intention,  Prescription,  Custom. 

<»  10  Co.  .%  ;  and  see  Nick-els  v.  Jioss,  8  C.  B.  (65  E.  C.  L.  R.)  704. 


PRESUMPTIONS  —  LEGAL.  755 

that  the  clerk  had  delivered  the  message.®     Upon  this  principle  the 

law  always  presumes  in  favor  of  innocence,  as  that  a  man's  character 

is  good  until  the  contrary  appear,  or  that  he  is  innocent  of  an  oflFence 

imputed  to   him   till  his  guilt  be  proved.     Where  a  woman  married 

again  within  the  space  of  twelve  months  after  her  husband  had  left 

the  country,  the  presumption  of  innocence  was  held  to  preponderate 

over  the  usual   presumption  of   the   continuance   of   life.^     On   the 

other  hand,  omnia  prcesumuntur  *contra  spoliatorem.     Thus, 

.  .  .  r*756"l 

if  a  man  tortiously  withhold  the  evidence  by  which  the  nature    '-         -" 

of  his  case  would  be  manifested,  every  presumption  to  his  disadvan- 
tage would  be  adopted.^ 

®  Middleton  v.  Earned,  4  Ex.  241. 

''  R.  V.  Twyning,  2  B.  &  Aid.  386.  But  this  case  has  been  much  commented 
on  in  R.  v.  Harborne,  2  Ad.  &  E.  (29  E.  C.  L.  R.)  541,  where  it  was  held  that  a 
man  having  some  years  before  married  one  woman,  who  was  shown  to  have 
been  alive  on  17th  March,  1831,  and  another  woman  on  the  11th  April  in  that 
year,  the  sessions  were  justified  in  presuming  the  first  wife  to  have  been  alive 
and  the  second  marriage  void  ;  and  Lord  Denman,  C.  J.,  said  that  there  was  no 
rigid  presumption  of  law  without  reference  to  the  accompanying  circumstances, 
and  the  presumption  of  innocence  could  not  prevail  against  proof  that  the  first 
wife  was  alive  shortly  before.  With  respect  to  the  general  rule  of  the  pre- 
sumption of  innocence,  see  Williams  v.  The  East  India  Company,  3  East  192  ; 
R.  V.  Hawkins,  10  East  211  ;  and  Lord  Halifax's  case,  supra,  pp.  593,  594.  In 
Powell  V.  Milburn,  3  Wils.  355 ;  2  Bl.  851  ;  upon  the  trial  of  an  action  for 
money  had  and  received,  in  order  to  try  the  plaintiff's  right  to  a  donative,  it 
was  held  that  it  was  unnecessary  for  him  to  prove  at  the  trial,  although  called 
upon  to  do  so,  that  he  had  subscribed  the  articles  of  the  church,  in  the 
presence  of  the  ordinary,  or  publicly  read  the  same,  or  that  he  had  sub- 
scribed the  declaration  of  uniformity  contained  in  the  stat.  13  &  14  Charles 
II.,  c.  4.  And  the  case  of  MunJce  v.  Butler,  1  Roll.  R.  83,  was  cited 
as  a  strong  one.  Monke  sued  for  tithes  ;  the  defendant  pleaded  that  the 
plaintiff  had  not  read  the  articles  according  to  the  statute,  and  the  Court  con- 
strained the  defendant  to  prove  the  negative;  and  Coke  said,  that  if  such  a 
matter  should  come  before  him  in  evidence,  he  would  presume,  until  the  con- 
trary should  be  proved,  that  the  plaintiff  had  read  the  articles.  And  in  Clay- 
ton's Rep.  Pleas  of  Assize,  fol.  48,  pi.  83,  where  the  plaintiff  sued  for  tithes 
under  the  statute  Edw.  VI.,  it  was  held  that  the  plaintiff  should  not  be  put  to 
prove  admission,  institution  and  induction  ;  and  that  if  it  was  otherwise,  the 
defendant  might  prove  it.  And  in  ejectment  by  a  rector  or  vicar,  it  is  not 
necessary  to  prove  that  he  was  in  orders,  for,  according  to  Lord  Holt,  having 
established  his  temporal  title,  his  religious  or  political  title  was  to  be  presumed  : 
Dr.  Harcofs  case,  Comb.  202.  And  in  R.  v.  Coombs,  Comb.  57,  the  defendant 
having  sworn  an  affirmative  for  which  an  information  was  filed  against  him,  the 
Court  directed  that  the  prosecutor  should  first  give  probable  evidence  of  the 
negative,  and  that  the  defendant  should  afterwards  prove  the  affirmative  if  he 
could. 

^Armory  v.  Delamirie,  1  Strange  504;  1  Smith,  L.  C.  151,  and  the  notes; 
Lord  Melville's  case,  29  How.  St.  Tr.  1194. 


756  PROOFS. 

But  in  general,  where  a  person  is  required  to  do  an  act,  the  omis- 
sion to  do  which  would  be  criminal,  his  performance  of  that  act  will 
be  intended  until  the  contrary  be  siiown.''  And,  therefore,  where 
a  plaintiff  alleged  in  his  declaration  that  the  defendants,  who  were 
the  charterers  of  his  ship,  had   put   on  board  a  very  dangerous  and 

^combustible  commodity  (in   consequence    of  which    a    loss 
r*7571  .  .  . 

■-  -J    happened),  without  giving  due  notice  to  the  captain  or  other 

person  employed  in  the  navigation  of  the  vessel,  it  was  held  to  be 
incumbent  on  the  plaintiff  to  prove  his  averment.'  But  when  an  act, 
which  in  its  nature  is  criminal,  has  once  been  proved,  the  law  fre- 
quently infers  malice,  and  requires  exculpatory  proof  from  the  party. 
Thus  in  case  of  homicide,  after  proof  that  the  prisoner  killed  the 
deceased,  the  law  will  presume  malice,  until  the  prisoner  justify  or 
extenuate  the  act.''  So  if  a  man  hold  a  market  near  to  the  legal 
market  of  another,  and  on  the  same  day,  the  former  will  be  intended 
to  be  a  nuisance.'  And  it  is  presumed  to  be  a  nuisance,  where  there 
is  an  ancient  ferry  from  ^.  to  B.  leading  to  a  public  highway,  to 
carry  passengers  from  A.  to  0.,  a  short  distance  from  B.,  from 
whence  they  pass  to  the  same  highway.™ 

It  is  also  a  maxim  of  law,  in  principle  nearly  allied  to  the  former, 
that  ^'^ omnia  prcesumuntur  rite  et  solenniter  esse  acta,  donee  prohetur 
in  contrarium."^^  Thus  it  will  be  presumed  that  a  man  who  has 
acted  in  a  public  office  or  situation  was  duly  appointed." 

■^  3  East  192;  and^er  Lord  EUenborough,  R.  v.  Inhabitants  of  Hasling field, 
2  M.  &  S.  561. 

'  Williams  v.  The  East  India  Co.,  3  East  192,  supra,  p.  732. 

■^  Fost.  290. 

^  Yard  v.  Ford,  2  Wms.  Saund.  172;  F.  N.  B.  184;  and  see  In  re,  Islington 
Market  Bill,  12  M.  &  W.  20,  note. 

■"  F.  N.  B.  180  ;  Iluzzey  v.  Field,  2  C,  M.  &  R.  432. 

°  Co.  Litt.  232.  In  Van  Omeron  v.  Dowick,  2  Camp.  44,  on  proof  that  ex- 
ported articles,  which  were  contraband  of  war,  had  been  entered  at  the  customs, 
Lord  EUenborough  presumed  a  license  to  export  them  :  and  in  a  case  against  a 
carrier  for  loss  of  goods  to  be  carried  from  Dublin  to  Liverpool,  the  importation 
of  which  was  illegal,  and  consequently  the  contract  with  the  carrier  void  unless 
they  were  entered  at  the  custom-house,  it  was  held  that  it  lay  on  the  defendant 
to  prove  that  they  were  not  entered,  for  the  presumption  is,  that  a  party  com- 
plies with  the  law:  Sisson  v.  Dixon,  5  B.  &  C.  (11  E.  C.  L.  R.)  758  ;  and  see 
Rodwell  V.  Hedge,  1  C.  &  P.  (12  E.  C.  L.  R.)  220;  Doe  d.  Phillips  v.  Evans, 
1  0.  &  M.  461,  infra,  p.  760  ;  Doe  v.  Gore,  2  M.  &  W.  320  ;  Manning  v.  Eastern 
Counties  II.  Co.,  1  M.  &  W.  237 ;  R.  v.  Whiston,  4  Ad.  &  E.  (31  E.  C.  L.  R.) 
G07. 

°  See  instances,  supra,  p.  646  ;  R.  v.  Verelst,  3  Camp.  432 ;  although  the  officer 

'  Conolbj  v.   Rileg,  25  Md.  402 ;   Willis  v.  Leiois,  28  Tex.  185 ;   Wright  v. 


PRESUMPTION  S — L  E  G  A  L.  758 

Upon  proof  of  title,  everything  which  is  colhiteral  to  *the 
title  will  be  intended  without  proof;    for  although  the  law    L         J 
requires  exactness  in  the  derivation   of  a  title,  yet  when  that  has 
once  been  proved,  all  collateral  circumstances  will  be  presumed  in 
favor  of  right. P 

by  acting  under  a  special  authority,  different  from  the  ordinary  course  of  his 
office,  given  him  by  virtue  of  a  particular  statute  :  Marshall  v.  Lamb,  5  Q.  B. 
(48  E.  C.  L.  R.)  115.  Where,  in  an  action  by  an  attorney  for  costs  incurred  in 
the  year  1824  in  a  suit  in  the  Common  Pleas,  the  defendant  proved  that  the 
plaintiff  had  not  taken  out  any  certificate  in  the  year  1814  or  the  four  following 
years,  and  that  he  had  been  admitted  an  attorney  of  the  King's  Bench  in  the 
year  1702,  but  had  not  since  been  re-admitted  an  attorney  of  that  Court  but 
there  was  no  pi'oof  that  he  had  not  been  re-admitted  an  attorney  in  the  Court 
of  Common  Pleas;  it  was  held,  that  the  plaintiff's  acting  as  an  attorney  afforded 
prima  facie  evidence  that  he  was  then  an  attorney  of  the  C.  P.,  and  that  it  lay 
on  the  defendant  to  show  that  he  was  not  an  attorney  of  that  Court  when  the 
business  was  done:  Pearce  v.  Whale,  5  B.  &  C.  (11  E.  C.  L.  R.)  38  ;  and  see 
further,  Sevan  v.  Williams,  3  T.  R.  635 :  and  infra,  tit.  Officer.  It  would 
seem  that  this  principle  does  not  apply,  where  the  officer  is  suing  for  his  own 
benefit:  Smith  v.  Cartwright,  20  L.  J.,  Ex.  401.  A  parish  certificate,  of  the 
date  1748,  was  signed  only  by  two  churchwardens  and  two  overseers  ;  it  appear- 
ing from  entries  in  visitation  books  long  before  and  long  after,  down  to  the  time 
in  question,  that  four  churchwardens  had  always  been  regularly  chosen,  al- 
though in  twelve  instances  between  1683  and  1829,  less  than  four  had  been 
SAvorn  in,  and  the  visitation  books  for  1747  were  lost ;  and  the  sessions  had 
refused  to  presume  a  new  and  valid  appointment  of  two  only  for  the  year  of  the 
date  of  the  certificate,  the  Court  confirmed  their  decision:  li.  v.  Upton  Gray, 
10  B.  &  C.  (21   E.  C.  L.  R.)  807. 

P  6  Co.  38  ;  2  Wms.  Saund.  42,  d.  note  7.  In  ejectment  for  a  term  assigned  to 
secure  an  annuity,  the  enrolment  of  the  annuity  was  presumed  :  Doe  v.  Mason,  3 
Camp.  7.  Where  a  deed  purporting  to  have  been  sealed  and  delivered  is  proved 
to  have  been  signed,  it  may  be  presumed  to  have  been  sealed  and  delivered  :  Talbot 
V.  Hodson,  7  Taunt.  (2  E.  C.  L.  R.)  251.  A  compensation  awarded  by  a  jury 
for  land  taken  for  the  purpose  of  a  highway  is  presumed  to  include  a  compen- 
sation for  the  burthen  of  holding  up  the  fences  :  per  Grose,  J.,  R.  v.  Llaudillo, 
2  T.  R.  232.  A  document  is  presumed  to  have  been  made  when  it  bears  date, 
where  the  document  appears  to  be  more  than  thirty  years  old :   6  Bing.  N.  C. 

Hawkins,  Ibid.  452  ;  Phelps  v.  Ratcliffe,  3  Bush  334  ;  Todemier  v.  Aspinwall, 
43  111.  401  ;  Rosenthal  v.  Renick,  44  Ibid.  202 ;  McNorton  v.  Akers,  24  Iowa  369  ; 
McCutchin  v.  Piatt,  22  Wis.  561  ;  Smith  v.  Jordan,  13  Minn.  264  :  Comm  v. 
Blood,  97  Mass.  538  ;  Barnard  v.  Heydrick,  49  Barb.  62 ;  Kelly  v.  Green,  3  P. 
F.  Smith  302;  Lackaioanna  Iron  Co.  v.  Fales,  5  Ibid.  90;  Reynolds  v.  Nelson, 
41  Miss.  83 ;  Shehan  v.  Davis,  17  Ohio  St.  571  ;  Hall  v.  Kellogg,  16  Mich.  135 ; 
Trinity  Church  v.  Higgins,  4  Rob.  1 ;  TJ.  S.  v.  Weed,  5  Wall.  62  ;  Jones  v.  Mun- 
back,  26  Tex.  235  ;  Anderson  v.  Sutton,  2  Duvall  480;  Niantic  Bank  v.  Dennis, 
37  111.  381.  The  law  presumes  the  due  performance  of  official  duty:  Wood  v. 
Terry,  4  Lans.  80. 


759  PROOFS. 

r*7'^Q1  *^^  therefore  a  man  declare  upon  a  grant  or  feoffment, 
attornment  will  be  intended,**  even  although  a  deed  be  essen- 
tial to  such  collateral  matter  ex  provisione  hominis,  for  this  is  but 
the  private  act  of  the  parties,  and  is  not  allowed  to  control  the  judg- 
ment of  the  law,  which  intends  all  collateral  matters/  But  it  is 
otherwise,  although  the  matter  be  but  collateral,  if  a  deed  be  essential 
to  such  collateral  matter  ex  institutione  legis.^ 

So,  where  one  who  suffered  a  recovery  had  power  to  do  it,  it  will 
be  presumed  that  it  was  done  with  all  the  legal  requisites.*  So,  it 
is  always  inferred  that  the  records  of  a  court  of  justice  have  been 
correctly  made,"  that  judges  and  juries  do  nothing  maliciously,'' 
and  that  the  decisions  of  a  court  of  competent  jurisdiction  are  Avell 
founded.^  The  court  will  not  presume  any  fact  to  vitiate  an  order 
of  removal.''  Upon  the  same  principle,  the  courts,  after  verdict,  will 
presume  that  facts,  without  proof  of  which  the  verdict  could  not 
have  been  found,  were  proved,  although  they  were  not  alleged,  pro- 
vided upon  reasonable  intendment  these  facts  can  be  considered  as 
included  in  the  general  terms  used  ;^  where  an  order  of  bastardy 
r*T(n  P^^poi'ts  to  have  been  made  on  the  evidence  of  the  *mother 
who  is  a  married  woman,  and  on  other  evidence,  the  court, 

(37  E.  C.  L.  R.)  301 ;  Davies  v.  Loivndes,  6  M.  &.  G.  (46  E.  C.  L.  R.)  528 ;  and 
also  even  where  it  is  of  recent  date :  Anderson  v.  Weston,  6  Ring.  N.  C.  (37  E. 
C.  L.  R.)  296;  Smith  v.  Battens,  1  M.  &  Rob.  341  ;  Doe  v.  Stillwell,  8  A.  &  E. 
(35  E.  C.  L.  R.)  645;  Potez  v.  Glossop,  2  Ex.  191;  Sinclair  v.  Baggaley,  4  M. 
&W.  312;  Maljias  V.  Clements,  19  L.  J.,  Q.  B.  435;  Morgan  v.  Whitmore,  & 
Ex.  716.  But  doubt  has  been  expressed  in  the  latter  case  as  to  the  soundness 
of  this  presumption.  It  is  otherwise  in  an  action  for  criminal  conversation, 
where  the  letters  of  the  wife  to  the  husband  are  produced  to  show  the  terms  on 
which  they  lived  ;  there  some  evidence  must  be  given  to  show  when  they  were 
written :  Trelawney  v.  Coleman,  1  B.  &  Aid.  90 ;  Wilton  v.  Webster,  7  C.  &  P. 
(32  E.  C.  L.  R.)  198  ;  and  so  where  documents  are  produced  to  prove  the 
existence  at  a  given  time  of  a  debt  to  support  a  fiat :  Wright  v.  Lainson,  2  M. 
&  W.  739. 

•J  Ferrers  v.  Wignal,  Cro.  Eliz.  401.  So  livery  where  a  feoffment  is  pleaded 
is  implied :  Plowd.  149  ;  1  Wms.  Saund.  228,  a,  note  (e). 

"■  BcUami/s  case,  6  Co.  38.  "  Ibid. 

'2  Saund.  42  «,  (7). 

"  Read  v.  Jackson,  1  East  355;  see  Lord  Carnarvon  v.  Villebois,  13  M.  &  W. 
313. 

*  Per  Eyre,  B.,  1  T.  R.  503. 

y  See  tit.  Judgment.     lies  judicata  pro  veritate  accipitur  ;  L.  207,  ff.  de  reg.  jur. 

*  R.  v.  Stockton,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  546. 

"  Spiers  v.  Parker,  I  T.  R.  141  ;  R.  v.  Twining,  2  B.  &  Aid.  386  ;  Tehhutt  v. 
Selhu,  6  A.  &  E.  (33  E.  C.  L.  R.)  786 ;  see  1  Wms.  Saund.  220. 


PRESUMPTIONS — LEGAL.  760 

in  support  of  the  order,  will  intend  that  the  other  evidence  was 
legal  evidence.''  So,  it  will  be  presumed,  till  the  contrary  be  shown, 
that  a  child  born  in  wedlock  is  legitimate,  for  the  maxim  of  law  is, 
''''Pater  est  quern  nuptice  de77ionstrant ;''"  that  the  signatures  in  parish 
registers  are  those  of  the  person  whose  duty  it  is  to  sign  them  f  that 
a  rate  is  equally  made.®  So,  on  a  return  to  a  mandamus,  which  on 
the  face  of  it  is  certain,  the  court  will  not  intend  facts  inconsistent 
with  it,  but  will  intend  in  favor  of  the  return  and  not  against  it/  So, 
that  an  estate  was  sold  in  the  manner  directed  by  a  statute.^ 

But  notwithstanding  the  general  presumption,  omnia  rite  esse  acta, 
positive  proof  may  still  be  necessary,  if  any  counter  presumption  be 
raised  by  the  circumstances.  Thus,  where  the  inhabitants  of  Hasting- 
field,  in  defence  of  an  indictment  against  them  for  not  repairing  a 
highway,  gave  in  evidence  an  award  by  commissioners  under  an  En- 
closure Act,  made  sixteen  or  seventeen  years  ago,  by  which  they 
awarded  that  the  highway  was  not  within  the  parish,  but  it  appeared 
that  the  defendants  had  repaired  it  ever  since,  it  was  held,  that  the 
usage  raised  a  presumption  that  proper  notices  had  not  been  given 
according  to  the  Act.** 

Some  of  the  most  important  presumptions,  founded  on  lapse  of  time 
and  length  of  enjoyment,  have  already  been  alluded  to.'  Where  the 
existence  of  a  particular  subject-matter  or  relation  has  once  been 
proved,  its  continuance  is  presumed  till  proof  be  given  to  the  con- 
trary, or  till  a  different  presumption  be  afforded  by  the  very  nature 
of  the  subject-matter.''  Thus,  it  is  to  be  *presumed,  within  r*7/:^-|-| 
certain  limits,  that  a  person  once  proved  to  have  existed  still 
exists.'  This  presumption  ceases  at  the  expiration  of  seven  years 
from  the  time  when  the  person  was  last  known   to  be  living  :"^  but 

i"  R.  V.  Bedell,  Andr.  8. 

"  See  tit.  Bastardy.  But  a  child  born  during  a  divorce  a  mensd  et  thoro,  is 
presumed  to  be  illegitimate :  St.  George's  v.  St.  Margaret's,  1  Salk.  123. 

*  Taylor  v.  Cooke,  8  Price  653. 

^  See  tit.  Rate. 

^Pe/'Buller,  Doug.  158. 

e  Doe  V.  Evans,  1  Cr.  &  M.  450 ;  Doe  v.  Gore,  2  M.  &  W.  320. 

''  R.  V.  Halsingjield,  2  M.  &  S.  558  ;  Middleton  v.  Earned,  4  Ex.  241,  supra, 
p.  755. 

'  Supra,  p.  742 ;  and  see  tit.  Prescription. 

^  See  Lord  Ellenborough's  observations  in  Doe  v.  Palmer,  16  East  55,  as  that 
a  pauper  proved  to  have  been  settled  in  a  parish  continues  settled  there  :  R.  v. 
Tanner,  1  Esp.  306. 

'  Throgmorton  v.  Walto7i,  2  Roll.  Rep.  461. 

^  See  tit.  Death  ;  and  see  the  stat.  19  Car.  II.,  c.  6,  as  to  lessees  for  lives,  and 


761  PROOFS. 

there  is  no  legal  presumption  as  to  the  particular  time  of  death 
during  that  interval."  So,  where  two  or  more  have  been  proved  to 
be  partners,  it  is  to  be  presumed  that  the  partnership  afterwards  sub- 
sists, unless  the  contrary  be  shown."  And  the  same  presumption 
seems  to  exist,  that  an  agent  who  has  long  been  known  to  have  acted 
for  his  principal  continues  to  be  authorized  so  to  do.^  Upon  an  in- 
dictment for  a  libel  against  Lord  St.  Vincent,  as  first  lord  of  the 
admiralty,  after  proof  of  his  appointment  by  patent  previous  to  the 
publishing  of  the  libel,  it  was  held  to  be  evidence  that  he  was  so  at 
the  time  of  publication,  and  that  proof  of  the  determination  of  the 
appointment  lay  on  the  defendant. 'i 

Where  a  party  holds  over  after  the  determination  of  a  lease, 
an  agreement  is  presumed  to  hold  on  the  same  terms,  so  far  as 
they  are  applicable,"^  in  the  absence  of  evidence  of  any  other  agree- 
ment.^ 

r^rincyi.  Most  important  presumptions  are  derivable  from  the  *con- 
duct  of  parties,  as  well  in  civil  as  criminal  proceedings.  If 
circumstances  induce  a  strong  suspicion  of  guilt,  and  where  the  ac- 
cused might,  if  he  were  innocent,  explain  those  circumstances  con- 
sistently with  his  own  innocence,  and  yet  does  not  offer  such  expla- 
nation, a  strong  natural  presumption  arises  that  he  is  guilty.  And 
in  general,  where  a  party  has  the  means  in  his  power  of  rebutting 
and  explaining  the  evidence  adduced  against  him,  if  it  does  not  tend 
to  the  truth,  the  omission  to  do  so  furnishes  a  forcible  inference 
against  him. 

Presumptions  from  a  man's  conduct  operate,  as  has  been  seen,  in 
the  nature  of  admissions ;  for,  as  against  himself,  it  is  to  be  pre- 

the  stat.  6  Anne,  c.  18.  Marriage  and  the  birth  of  a  child  cannot  be  presumed, 
although  the  alternative  is  to  presume  death  without  issue  :  Doe  d.  Oldham  v. 
Wolle;/,  8  B.  &  C.  (15  E.  C.  L.  R.)  22. 

■>  Doe  dem.  Kniyht  v.  Nepean,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  87  ;  2  M.  &  W.  895  ; 
s.  c.  in  Cam  Scacc. 

"  See  tit.  Partners. 

P  Trueman  v.  Loder,  11  A.  &  E.  (39  E.  C.  L.  R.)  589. 

172  .  V.  Budd,  5  Esp.  C.  230. 

■■  Ditjbi/  V.  Atkinson,  4  Camp.  275  ;  Roe  v.  Ward,  1  11.  B.  97  ;  Roberts  v. 
Haywurd,  3  G.  &  P.  (14  E.  C.  L.  R.)  432  ;  Doe  v.  Amey,  12  Ad.  &  E.  (40  E.  C. 
L.  R.)  476 ;  Doe  v.  Dohell,  12  Q.  B.  (64  E.  C.  L.  R.)  806.  Even  against  the 
successor  of  a  dean  and  chapter  who  granted  the  original  lease  :  Doe  v.  Taniere, 
12  Q.  B.  (64  E.  C.  L.  R.)  998;  and  though  the  rent  be  altered:  Button  v. 
Warren,  1  M.  &  W.  475.  As  to  whether  this  is  a  presumption  of  law  or  fact, 
see  Johnson  v.  St.  Peter,  Hereford,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  520. 

•  Mayor  of  Thetford  v.  Tyler,  8  Q.  B.  (55  E,  C.  L.  R.)  95. 


PRESUMPTIONS.  762 

sumed  that  a  man's  actions  and  representations  correspond  with  the 
truth.*  These  are  in  all  cases  evidence  of  the  fact ;  and  where  the 
party  has  wilfully  induced  another  to  act  on  the  faith  of  such  repre- 
sentations, and  where  he  cannot  show  the  contrary,  without  being 
guilty  of  a  breach  of  good  faith  and  common  honesty,  such  repre- 
sentations are  usually  not  barely  evidence  of  the  fact,  but  are  abso- 
lutely conclusive." 

Numerous  and  most  important  presumptions  are  founded  merely 
on  the  common  and  ordinary  experience  of  mankind;  as  that  a  man 
will  not  pay  a  debt  which  is  not  due  f  or  acknowledge  the  existence 
of  a  debt  to  which  he  is  not  liable.  That  every  man  contemplates 
and  intends  the  natural  consequence  of  his  act.^ 

*Many  again  are  derived  from  the  course  and  habit  of  r^Ypq-i 
dealing  in  a  particular  trade  or  business ;  as  that  the  parties 
intended  to  contract  according  to  the  usual  course  of  dealing.^ 
Other  presumptions  are  made  from  the  ordinary  course  of  public 
departments,'^  as  that  a  letter  properly  directed  and  sent  by  the  post,*" 
or  given  to  the  postman,"  reached  its  destination. 

It  would,  however,  be  a  vain  endeavor  to  attempt  to  specify  the 
numerous   presumptions   with    which    the    knowledge     of    a   jury, 

*  See  tit.  Admissions. 

»  Pickard  v.  Sears,  6  A.  &  E.  (33  E.  C.  L.  R.)  469  ;  Freetnaii  v.  Cooke,  2  Ex. 
654.  If  A  rent  lands  of  B,  the  incumbent  of  a  living,  and  pay  him  rent,  he 
cannot  show,  in  defence  of  an  action  for  use  and  occupation,  that  the  presenta- 
tion was  simoniacal :    Coo  key.  Luxley,  5  T.  R.  4. 

*  "  Presumptionem  pro  eo  esse  qui  accepit,  nemo  dubitat,  qui  enim  solvit  nun- 
qiiam  ita  re  supinus  est,  ut  facile  suas pecunias  jactet  et  indebitus  ejfundat:''^  L. 
25,  ff.  de  probat. 

y  See  tit.  Intention,  Malice.  In  P,  v.  Sheppard,  R.  &R.  C.  C.  169,  the  pri- 
soner was  employed  by  Mordey,  to  buy  stock  for  him,  and  he  advanced  him 
money  so  to  do  :  the  prisoner  forged  the  stock  receipt,  and  was  convicted  of  so 
doing  with  intent  to  defraud  Mordey,  although  the  latter  swore  that  he  believed 
he  had  no  such  intention.  So  fi-om  the  fact  of  killing  another  the  law  presumes 
malice :  Fost.  256  ;  as  it  also  does  from  the  fact  of  publishing  a  libel :  Haire  v. 
Wilson,  9  B.  &  C.  (17  E,  C.  L.  R.)  643;  from  the  absence  of  probable  cause 
for  a  criminal  prosecution  :  Burley  v.  Bethune,  5  Taunt.  (1  E.  C.  L.  R.)  583  5 
Crozer  v.  Pilling,  4  B.  &  C.  (10  E.  C.  L.  R.)  26  ;  and  from  knowingly  making  a 
false  representation,  whereby  another  is  injured:  Tapp  v.  Lee,  3  B.  &  P.  367  ; 
Pontifex  v.  Bignold,  3  M.  &  G.  (42  E.  C.  L.  R.)  63 ;  see  Fountain  v.  Boodle,  3 
Q.  B.'(43E.  C.  L.  R.)  5. 

^  Supra,  p.  710  ;  and  see  tit.  Custom. 

"  See  Van  Omeron  v.  Dowick,  stipra,  p.  757. 

"  Walter  v.  Haynes,  R.  &  M.  (21  E.  C  L.  R.)  649 ;  p.  721. 

«  Skilbeck  V.  Garbett,  7  Q.  B.  (53  E.  C.  L.  R.)  846. 


763  DUTY    OF    THE     COURT. 

conversant  in  the  common  affairs  and  course  of  dealing  in  society, 
necessarily  supplies  them  ;  it  is  obvious  that  such  presumptions  are 
co-extensive  with  the  common  experience  and  observations  of  man- 
kind."^ 


*CHAPTER  11. 

[*764] 

DUTY   OF   THE   COURT. 

It  is  the  undoubted  province  of  the  court,  not  only  to  expound 
the  law  as  applicable  to  the  facts,^  but  also  to  decide  upon  all  inter- 
locutory matters  which  arise  collaterally  in  the  course  of  the  trial.^ 
Previous  to  a  few  remarks  upon  the  distinction  between  law  and  fact, 
it  will  be  convenient  to  consider  more  particularly  the  process  by 
which  the  law  is  applied  to  facts. 

So  infinitely  varied  and  complicated  are  human  affairs  that  no 
code  of  law  can  provide  a  priori  for  all  possible  predicaments 
which  may  happen  ;  all  that  can  be  done  is  to  annex  consequences 
and  incidents  to  certain  defined  combinations  of  circumstances 
described  in  general  terms,  capable  of  being  applied  to  such  par- 
ticular modes  or  predicaments  as  may  occur  in  practice.  In  order, 
then,  to  establish  a  claim  or  charge,  circumstances  must  be  alleged 
which  show  that  the  claim  or  charge  is  warranted  in  point  of  law, 
supposing  those  allegations  to  be  true.     In  other  words,  the  alle- 

^  For  other  observations  connected  with  the  subject,  see  Ind.  tit.  Presumption. 
Although  the  owner  is  liable  to  the  master  for  money  actually  laid  out  for  the 
benefit  of  the  ship,  yet  he  is  not  liable  to  a  stranger  for  money  advanced,  un- 
less it  be  expressly  advanced  for  that  purpose:  Thacker  v.  Moates,  1  M.  &  Rob. 
79.  The  declarations  of  a  shopman  are  not  evidence  against  his  employer,  un- 
less made  in  the  course  of  his  employer's  business:  Garth  v.  Howard,  8  Ring. 
(21  E.  C.  L.  R.)  451.  But  in  an  action  for  freight  by  the  master,  the  declara- 
tions of  the  owner  were  admitted  as  evidence  for  the  defendant :  Smith  v.  Lyo7i, 
3  Campb.  405,  Ellenl)orough,  C.  J.  1813. 

*  After  the  jury  are  charged,  they  can  only  state  a  question  and  receive  the 
law  from  the  court ;  the  court  therefore  refused  to  permit  them  to  have  a  law 
treatise  on  the  subject,  which  had  been  cited :  Burrows  v.  Unwin,  3  C.  &  P.  (14 
E.  C.  L.  R.)  310. 

^  See  Hale's  P.  C.  300  ;  Sid.  235;  Goodman  v.  Cotherington,  Sty.  233  -,  Ben- 
nett v.  Hundred  of  Hertford,  Tri.  per  Pais,  209 ;  Anon.,  Salk.  405  ;  B.  N.  P. 
308;  Kitchen  v.  Mainwarimj,  cited  And.  321. 


QUESTIONS     OF    LAW    AND     FACT.  764 

gatioiis  upon  the  record  are  nothing  more  than  a  specification  of 
facts  and  circumstances  which  in  point  of  law  are  essential  to 
support  the  charge  or  claim.  Thus,  on  a  charge  of  larceny,  the 
indictment  alleges  all  the  particulars  essential  to  the  offence,  a 
caption,  and  an  asportation  of  *  specific  property  belonging  ^^„n.r-, 
to  a  particular  owner  with  a  felonious  intention.  Now,  with  ^  -^ 
respect  to  every  essential  allegation,  although  the  jury  must  find 
the  facts,  it  is  always  for  the  court  to  decide  whether  those  facts, 
when  proved,  support  the  allegations  in  points  of  law.  Thus,  in  the 
case  of  larceny,  the  jury  must  decide  upon  the  evidence  whether 
the  prisoner  removed  at  all  the  goods  alleged  to  be  stolen,  and  how 
far,  and  under  what  circumstances,  he  removed  them  ;  but  whether 
such  a  removal  be  an  asportation,  sufficient  to  constitute  felony,  is 
pure  matter  of  law.  Hence,  in  order  to  substantiate  every  charge 
or  claim  as  alleged  on  the  record,  it  is  essential  that  the  jury 
should  find  some  predicament  or  state  of  facts  falling  within  the 
description  contained  in  each  essential  allegation,  and  that  the  court 
should  adjudge  such  special  modes  or  fiicts  to  be  suflBcient  in  law  to 
sustain  those  allegations.  This  must  be  done  in  one  or  other  of 
two  ways:  either  the  court  must  inform  the  jury  hypothetically, 
that  the  facts  which  the  evidence  tends  to  prove  will,  if  proved,  satisfy 
the  allegations,  being  but  particular  modes  which  fall  within  the 
essentials  enumerated  in  the  general  definition,  or  the  jury  must  find 
those  predicaments  or  modes  specially,  and  then  the  court  can  after- 
wards apply  the  law,  and  pronounce  Avhether  the  facts  proved  be,  or 
be  not  such  as  satisfy  the  general  and  defined  essentials  to  the  charge 
or  claim. 

It  is  obvious,  that  in  order  to  enable  the  court  afterwards  to 
apply  the  law  to  the  facts,  the  jury  must  find,  not  merely  evidence 
or  circumstances  which  tend  to  prove  or  disprove  facts  falling  within 
the  particulars  which  are  essential  to  support  the  charge  or  claim, 
but  must  either  find  particular  modes  included  within  the  descrip- 
tion, or  such  facts  as  negative  one  or  more  of  the  circumstances 
essential  to  the  charge  or  claim.  Thus,  if  in  the  case  of  larceny, 
the  jury  were  to  find  specially,  that  the  prisoner  took  the  goods  de- 
scribed in  the  house  of  A.  B.  with  the  intention  of  stealintr  them, 
removed  them  for  the  space  of  one  hundred  yards;  and  that  A.  B., 
the  alleged  owner,  had  *a  special  property  in  them  as  a 
bailee  ;  then,  as  the  finding  would  embrace  facts  which  were  •-'  ''^"J 
special  modes  falling  within  each  of  the  descriptive  allegations 
essential  to  the  offence,  the  court  would  be  enabled  afterwards  to 


766  PROOFS — DUTY  OF  THE  COURT. 

apply  the  law  by  pronouncing  the  prisoner  to  be  guilty.  So,  if,  on 
the  other  hand,  the  jury  were  in  such  case  to  find,  inter  alia,  that  a 
bale  of  goods  was  taken  by  the  prisoner  and  removed,  but  that  it 
still  remained  connected  with  the  shop  from  which  it  was  taken  by  a 
rope  or  chain,  such  a  finding  would  negative  every  mode  or  species  of 
asportation,  and  the  court  would  pronounce  accordingly."  But  again, 
if  the  jury  were  in  such  case  to  find  mere  evidence,^  however  cogent, 
of  any  of  the  essential  facts,  the  court  could  not  draw  the  conclusion. 
Thus,  if  they  were  to  find,  that  immediately  after  the  goods  were 
missed  the  prisoner  was  seized  with  the  goods  in  his  possession,  and 
that  he  confessed  that  he  was  guilty,  this  might  be  abundant  evidence 
to  prove  his  guilt,  but  would  be  mere  evidence,^  and  the  court  could 
pronounce  no  judgment.^ 

<=  See  B.  V.  Phillips,  East,  P.  C.  662. 

^  In  a  special  verdict,  all  the  facts  must  be  found  on  which  the  judgment  is 
founded,  and  not  mere  evidence  of  facts :  Hubbard  v.  Johnstone,  3  Taunt.  209. 
But  where  a  special  case  is  reserved,  if  the  circumstances  be  such  as  to  enable 
the  court  to  say,  without  difficulty,  what  ought  to  be  the  verdict  of  the  jury  upon 
them,  the  court  is  at  liberty  to  decide  the  question :  Thompson  v.  Giles,  2  B.  & 
C.  (9  E.  C.  L.  R.)  422.  And  in  general  it  is  agreed,  on  a  special  case,  that  the 
court  shall  be  at  liberty  to  draw  the  same  inferences  from  the  facts  as  a  jury. 
Great  objection  has  been  raised,  under  such  circumstances,  to  the  case  being 
afterwards  turned  into  a  special  verdict :  Ungstrom  v.  Brightman,  5  C.  B.  (57 
E.  C.  L.  R.)  419. 

*  So,  where  in  trover  the  jury  merely  find  a  demand  and  refusal  without  ex- 
pressly finding  a  conversion,  or  any  fact  which  in  point  of  law  amounts  to  an 
actual  conversion,  the  court  can  give  no  judgment :  Mires  v.  ^olebay,  5  Mod.  244. 
In  Harwood  v.  Goodright,  Cowp.  87,  the  jury  found,  that  after  the  will  had  been 
executed  by  a  testator,  in  favor  of  Harwood,  he  executed  another  will,  the  con- 
tents of  which  were  unknown  ;  and  it  was  contended  by  the  heir-at-law  that  this 
amounted  to  a  revocation.  Lord  Mansfield,  in  giving  judgment,  said,  "  In  con- 
sidering this  special  verdict,  the  duty  of  the  court  is  to  draw  a  conclusion  of  law 
from  the  facts  found  by  the  jury,  for  the  court  cannot  presume  any  fact  from  the 
evidence  stated.  Presumption,  indeed,  is  one  ground  of  evidence.  But  the  court 
cannot  presume  any  fact.  In  case  the  defendant  had  been  proved  to  have  de- 
stroyed this  last  will,  it  would  have  been  a  good  ground  for  the  jury  to  find  that 
this  was  a  revocation  :  but  the  jury,  on  the  presumption,  must  have  found  the 
fact.  So  with  regard  to  all  other  circumstances,  as  that  the  will  was  in  the  hands 
of  the  heir  at-law,  and  that  there  were  three  attesting  witnesses  to  the  will,  these 
would  have  been  proper  for  the  jury  to  have  considered,  but  we  are  confined  by 
the  facts  found  by  them." 


Mt  is  a  well-settled  doctrine  of  the  courts,  both  in  England  and  this  country, 
that  a  special  verdict  must  find  facts — not  merely  state  the  evidence  from  which 
facts  may  be  inferred.  It  will  not  be  helped  by  intendment.  Every  fact  not 
ascertained  by  it,  is  supposed  not  to  exist :  Brown  v.  Ralston,  4  Rand.  504 ;  Lee 


QUESTIONS     OF     LAW    AND    FACT.  767 

*Where  a  general  verdict  is  given,  the  same  process  occurs    j-^-p--, 
at  the  trial;  the  jury  decide  what  facts  are   proved,  and  re- 
ceiving and   applying   the  law  expounded  by  the  court,  as  the  court 
would  have  applied  it  had  the  jury  found  the  facts  simply,  pronounce 
a  general  verdict  involving  both  law  and  fact. 

It  has  been  frequently  doubted,  whether  a  particular  question  be 
one  of  law  or  o^  fact.  Thus  far  is  clear,  that  whenever  upon  particu- 
lar facts  found,  the  court,  by  the  application  of  any  rules  of  law  can 
pronounce  on  their  legal  effect,  with  reference  to  the  allegations  on 
the  record,  such  inference  is  matter  of  law.  It  is  also  clear,  that 
whenever  the  court  cannot  pronounce  on  the  legal  effect  of  particular 
facts,  and  where  it  is  requisite,  to  enable  them  to  do  so,  that  the  jury 
should  find  some  other  inference  or  conclusion,  such  further  inference 
or  conclusion  is  a  question  of  fact.  It  is  most  emphatically  true,  that 
a  jury  can  decide  matters  of  fact  only  ;^  they  may  indeed  apply  the 
law  as  delivered  by  the  court,  but  in  this  respect  they  act  merely 
ministerially,  under  the  direction  of  the  court. 

Every  general  verdict,  and  indeed  every  allegation  on  the  record 
found  by  a  jury  to  be  true,  involves  matter  of  law  as  well  as  matter 
of  fact ;  for  it  is  always  a  question  of  law,  whether  the  particular 
facts  proved  satisfy  the  allegations  upon  the  record.  Every  legal 
definition  and  allegation,  *and  every  general  verdict,  involves 
both  law  and  fact.     Thus,  in  the  simplest  case,  if  the  issue    *-  ^ 

''  Bishop  of  Meath  v.  Marquis  of  Winchester,  4  CI.  &  F.  445  ;  3  Bing.  N.  C. 
(32  E.  C.  L.  R.)  183. 

V.  Campbell.,  4  Post  198  ;  Seaward  v.  Jackson,  8  Cow.  406 :   Thompson  v.  Farr, 

1  Speers,  93 ;  Sewall  v.  Glidden,  1  Ala.  52  ;  Hill  v.  Covell,  1  Comst.  522  ;  Sisson 
V.  Barrett,  2  Comst.  406  ;  Lanyley  v.  Warner,  3  Ibid.  327  ;  State  v.  Watts,  10 
Ired.  3''9;  Blake  v.  Davis,  20  Ohio  321  ;  John  v.  Bates,  Litt.  Sel.  Cases  106  ; 
Wetland  Canal  Co.  v.  Hathaway ,  8  Wend.  480.  So,  where  it  does  not  find  in  the 
alternative  according  as  the  opinion  of  the  court  upon  the  law  may  be :  Slate  v. 
Wallace,  3  Ircd.  195.  If  the  jury  in  a  special  verdict  find  facts  only,  the  court 
must  draw  the  legal  conclusion  from  them  ;  and  if  they  draw  conclusions  against 
the  law  upon  the  face  of  them,  the  court  will  reject  the  conclusion  and  judge 
upon  the  facts.  Where  the  jury  find  only  such  facts  as  leave  the  question  of 
law  equivocal,  and  then  draw  a  conclusion  which  the  facts  not  found  might  have 
warranted,  the  court  will  say  that  their  conclusion  is  against  law  :  Butler  v. 
Hopper,  1  Wash.  C.  C.  499  ;  Peterson  v.  U.  S.,  2  Ibid.  36.  Where  a  verdict  is 
for  any  reason  bad,  the  court  will  award  a  venire  de  novo :  Bellows  v.  Hallowell, 

2  Mas.  31  ;  Stodder  v.  Puicell,  1  Stew.  287;  Seicall  v.  Glidden,  1  Ala.  52.  An 
agreed  case,  in  the  nature  of  a  special  verdict  is  to  be  considered  as  a  special 
verdict  found  by  a  jury,  and  if  it  be  defective  in  substance,  the  judgment  ren- 
dered upon  it  will  be  reversed,  and  a  venire  de  novo  awarded  :  Whitesidea  v. 
Russell,  8  W.  &  S.  44. 


768  PROOFS — DUTY    OF    THE    COURT. 

be  whether  A.  assaulted  B.,  it  involves  a  question  of  law  as  well  as 
of  fiict :  what  A.  did  is  a  question  of  fact ;  whether  what  he  so  did 
amounted  in  law  to  an  assault,  is  a  question  of  law.  Still  the  question 
for  the  jury  is  one  of  mere  fact,  for  upon  the  advice  of  the  court  they 
find  a  general  verdict,  applying  the  law  to  the  facts  proved  ;  or  they 
find  the  facts,  and  the  court  afterwards  applies  the  law.^ 

Hence,  it  follows,  that  a  question  or  inference  of  fact,  is  one  Avhich 
the  jury  can  find  upon  the  evidence  by  virtue  of  their  own  know- 
ledge and  experience,  without  any  legal  aid  derived  from  the  court ; 
and  that  an  inference  or  conclusion  of  law,  is  one  which  the  court  can 
draw  from  the  mere  circumstance  of  the  case  as  ascertained  by  a 
jury,  independently  of  any  general  inference  or  conclusion  drawn  by 
the  jury. 

In  ordinary  cases  this  distinction  is  perfectly  clear ;  but  it  is  now 
necessary  to  advert  to  a  class  of  cases  in  which  doubt  has  arisen, 
whether  particular  questions  and  inferences  belong  more  properly  to 
the  court  or  to  the  jury. 

This  occasionally  happens  where  some  general  inference  or  con- 
clusion is  to  be  drawn  from  a  number  of  particular  facts  and  circum- 
stances appertaining  to  the  individual  case ;  as  in  the  instances  of 
reasonable  time,  probable  cause,  due  diligence,  and  others  of  a  similar 
nature. 

It  will  be  proper  to  consider  the  origin  and  nature  of  these  ques- 
tions a  little  more  particularly.  Every  law,  it  has  been  observed, 
consists  in  the  annexation  of  certain  legal  incidents  to  particular 
combinations  of  facts.  Such  definitions  of  necessity  must  be  of  a 
general  and  abstract  nature.  No  human  sagacity  can,  in  framing 
laws,  provide  specifically  for  the  almost  infinite  variety  of  cases 
Avhich   occur  in  practice ;    and  therefore  all  that    can    be   done  in 

*many  instances  is  to  define,  not  by  an  enumeration  of  facts, 

r*7691  •  •  1 

^       '  -'    which,  in  cases  depending  on  a  great  variety  of  minute  and 

varying  circumstances  would  be  impracticable,  but  by  means  of  some 
general  result  or  inference  from  them,  as  in  the  instances  above  al- 
luded to,  of  reasonable  time,  due  diligence,  &c. 

For  instance,  the  law  cannot  prescribe  in  general  what  shall  be  a 
reasonable  time,  by  any  defined  combinations  of  facts.  So  much  does 
the  question  depend  upon  the  situation  of  the  parties,  and  the  minute 
and  peculiar  circumstances  incident  to  each  case.  If  a  man  has  a 
right,  by  contract  or  otherwise,  to  cut  and  take  crops  from  the  land 

8  An  jillcg.ition  of  duty  is  an  allegation  of  matter  of  law:  R.  v.  Everett^  8 
B.  &  C.  (15  E.  C.  L.  11.)  114. 


QUESTIONS     OF    LAW    AND    FACT.  769 

of  another,  the  law,  it  is  obvious,  can  lay  down  no  rule  as  to  the 
precise  time  when  they  shall  be  cut  and  removed  ;  all  that  can  be 
done  is  to  direct  or  to  imply  that  this  shall  be  done  in  a  reasonable 
and  convenient  time;  and  this  must  obviously  depend  on  the  state  of 
the  weather  and  other  circumstances  which  cannot  from  their  nature 
form  the  basis  of  any  legal  rule  or  definition.'' 

*General  terms  then,  such  as  reasonable   time,'  and  (-*77a  *77ii 
others  of  a  similar  nature,  being  technical  and  legal  *ex- 

''  Eaton  v.  Soiithhy,  Willes  131,  where  the  plaintiff  in  replevin  pleaded  to  an 
avowry,  justifying  the  taking  goods  as  a  distress  for  rent  in  arrear,  that  he  took 
the  growing  crops  under  an  execution,  and  afterwards  cut  the  wheat,  and  let 
the  same  lie  on  the  premises  until  the  same  in  a  course  of  husbandry  was  fit  to 
be  carried  away ;  and  that  the  defendant  distrained  the  same  before  it  was  fit 
to  be  carried  away ;  it  was  objected  by  the  defendant,  on  demurrer  to  this  plea, 
that  the  plaintifi"ought  to  have  set  forth  how  long  the  corn  lay  on  the  land  after 
it  was  cut,  that  the  court  might  see  whether  it  were  a  reasonable  time  or  not. 
But  the  court  decided  that  the  objection  was  untenable  ;  for  though  in  Co.  Litt. 
56,  b.,  it  is  said  that  in  some  cases  the  court  must  judge  whether  a  thing  be 
reasonable  or  not,  as  in  the  case  of  a  reasonable  fine,  a  reasonable  notice,  or  the 
like,  it  would  be  absurd  to  say,  that  in  a  case  like  the  present  the  court  must 
judge  of  the  reasonableness;  for  if  so,  it  ought  to  have  been  set  forth  in  the 
plea,  not  only  how  long  the  corn  lay  on  the  ground,  but  what  weather  it  was 
during  that  time,  and  many  other  incidents  which  would  be  ridiculous  to  be 
inserted  in  a  plea.  And  the  court  were  of  opinion  that  the  matter  was  suffi- 
ciently averred  ;  and  that  the  defendant  might  have  traversed  if  he  had  pleased, 
and  then  it  would  have  come  before  a  jury,  who,  upon  hearing  the  evidence, 
would  have  been  the  proper  judges  of  it. 

So  in  the  case  of  Bell  v.  Warden,  Willes  202,  where  the  defendant  in  trespass 
justified  under  an  alleged  custom,  for  the  inhabitants  of  a  town  to  walk  and 
ride  over  a  close  of  arable  land,  at  all  seasonable  times,  it  was  held,  that  sea- 
sonable times,  was  partly  a  question  of  fact,  and  partly  a  question  of  law ;  and 
on  demurrer  to  the  replication  of  de  injuria,  the  court  said,  as  the  custom  is 
laid  here,  if  it  were  not  a  seasonable  time,  the  justification  is  not  within  the 
custom  ;  and  though  the  court  may  be  the  proper  judges  of  this,  yet  in  many 
cases  it  may  be  proper  to  join  issue  upon  it,  that  is,  in  such  cases  where  it  does 
not  sufficiently  appear  on  the  pleadings  whether  it  were  a  seasonable  time  or 
not.  Accoi'dingly,  it  is  said,  in  the  case  of  Hobart  v.  Hammond,  4  Rep.  27,  that 
the  reasonableness  of  fines  must  be  determined  by  the  judges,  either  on  de- 
murrer or  on  evidence  laid  before  a  jury.  For  issues  may  be  joined  on  things 
which  are  partly  matters  of  fact,  and  partly  matters  of  law ;  and  then  when 
the  evidence  is  given  at  the  trial,  the  judge  must  direct  the  jury  how  the  law 
is ;  and  if  they  find  contrary  to  such  direction,  it  is  a  ground  for  a  new  trial. 
This  is  the  proper  course  in  actions  for  malicious  prosecution,  with  respect  to 
the  question  of  reasonable  and  probable  cause  {Panton  v.  Williams,  2  Q.  B. 
(42  E.  C.  L.  R.)  169),  which  is  discussed  separately,  infra,  pp.  781,  782. 

'  Although  time  be  a  necessary  ingredient  in  almost  every  contract  and  legal 
obligation,  yet  inasmuch  as  the  time  for  performing  an  act  must  depend  upon 
45 


771  PROOFS  —  DUTY    OF    THE    COURT. 

pressions,  it  is  clear,  in  the  first  place,  that  in  the  abstract  they  in- 
volve matter  of  law  as  well  as  matter  of  fact;  for  in  the  application 
of  all  legal  expressions,  it  is  a  question  of  legal  judgment  and  dis- 
cretion to  pronounce  whether  the  facts  as  found  bj  a  jurj  do  or  not 
r*7791  ^^t^^fy  ^^^^  legal  expression  or  allegation.''  It  is  therefore  *in 
all  cases  for  the  court  to  pronounce  whether  the  facts  show 

a  great  number  of  varying  circumstances,  the  law  cannot  lay  down  precise 
rules  applicable  to  all  cases,  or  do  more  than  prescribe  generally  a  reasonable 
time. 

And  in  general,  questions  of  reasonable  time,  reasonable  care,  due  diligence 
{per  Tindal,  C.  J.,  Mellish  v.  Raicdon,  9  Bing.  (23  E.  C.  L.  R.-)  423;  Shute  v. 
Robins,  M.  &  M.  (22  E.  C.  L.  R.)  133,  and  such  like,  depend  so  much  on  their 
own  peculiar  circumstances  as  not  to  admit  conveniently  of  any  general  rules ; 
and  it  is  of  greater  convenience  to  depend  on  the  judgment  and  discretion  of  a 
jury,  deciding  on  the  comparison  of  the  circumstances  with  the  ordinary  course 
of  practice,  or  with  reference  to  the  ordinary  principles  of  fair  and  honest  deal- 
ing, than  to  introduce  such  a  multiplicity  of  legal  rules  and  definitions  as  would 
be  necessary  for  the  due  decision  of  cases  subject  to  such  infinite  variety  of 
circumstances.  It  is  in  truth  a  matter  of  important  and  obvious  policy,  rather 
to  refer  questions  of  this  nature  as  matters  of  fact  to  a  jury,  than  to  frame  legal 
rules  applicable  to  particulars.  The  difficulty  of  framing  precise  rules  must, 
in  such  instances,  be  very  great,  by  the  reasons  adverted  to,  unless  they  be 
founded  on  some  prominent  and  decisive  incidents  ;  whenever  the  court  decided 
upon  circumstances,  the  decision  would  become  a  precedent  and  rule  of  law ; 
and  as  each  decision  would  afford  room  for  comparison  for  a  great  number  of 
distinctions,  the  obvious  effect  would  be  to  multiply  such  decisions  and  distinc- 
tions to  a  very  inconvenient  and  burdensome  extent.  On  the  other  hand,  by 
abstaining  from  legal  decision,  except  in  cases  where  some  decisive  rule  or  prin- 
ciple of  law  is  clearly  applicable,  and  by  adopting  in  others  the  inference 
of  the  jury,  in  point  of  fact,  substantial  justice  is  administered  in  simplicity, 
and  free  from  the  perplexity  occasioned  by  nice  and  subtle  distinctions  and 
conflicting  decisions.  And  this  is  an  advantage,  and  by  no  means  an  unimpor- 
tant one,  incident  to  the  system  of  trial  by  jury  ;  the  law  can  thus  deal  in 
general  definitions,  and  leave  the  rest  as  facts  to  the  jury,  without  multiplying 
decisions  and  precedents  ;  but  if  the  judges  and  not  the  jury  were  to  decide, 
every  decision  would  become  a  precedent,  and  legal  distinctions  would  be  mul- 
tiplied to  an  excessive  extent. 

^  The  question,  whether  the  facts  of  a  particular  case  fall  within  the  general 
terms  of  a  statute,  is  (at  least  usually)  a  question  of  law,  whether  the  statute 
define  the  meaning  of  its  own  terms,  or  use  them  without  definition,  according 
to  their  ordinary  acceptation  and  meaning.  If  a  special  verdict  involve  the 
question  whether  a  party  be  a  bankrupt,  it  is  not  essential  that  the  jury  should 
draw  the  conclusion  ;  the  courts  may  do  it  from  the  facts  found  :  Dodswoi'th 
v.  Anderson,  Jon.  142.  So  if  the  question  be  whether  the  party  be  a  chap- 
man within  the  stat.  5  Ann.  c.  14:  Kearle  q.  t.  Boulter,  Say.  1*.H  ;  Bac.  Ab., 
tit.  stat.  II. 

The  rule  applies  to  all  statutory  expressions,  and  to  all  allegations  in  issue, 


QUESTIONS     OF    LAW    AND     FACT.  772 

that  the  time  was  reasonable;  just  as  it  is  for  the  court  to  decide 
whether  the  facts  found  show  an  alleged  asportation  or  conversion,  or 
bankruptcy,  in  point  of  law.' 

But  in- particular  cases  the  inference  in  law  follows  the  inference 
in  fact;  where  the  court  cannot  draw  the  inference  that  the  time  was 
reasonable,  the  jury  must  draw  the  conclusion  in  fact;  and  then  the 
time  will  be  reasonable  in  point  of  law,  according  as  it  is  reasonable 
in  point  of  fact. 

Hence  it  follows  that  the  test  for  deciding  whether  *such    r:f:'77Q-| 
a  general  inference  as  to  reasonable  time,  &c.,  be  one  of  law 
or  of  fact,  is  this :  if  the  court,  in  the  particular  case,  can  draw  the 
conclusion   by  the   application   of  any  legal   rules  or  principles,  the 
conclusion  is  a  legal  one;'"  for  the  rules  and  principles  of  law  must 

however  common  and  popular  their  sense  and  meaning  may  be.  Thus,  where 
the  issue  was,  whether  C.  D.  was  an  inferior  tradesman  (under  the  stat.  4  &  5 
Will.  III.  c.  23,  s.  10,  now  repealed),  although  it  was  for  the  jury  to  find  whether 
C.  D.  was  a  tradesman,  and  to  ascertain  the  nature  and  kind  of  trade,  it  was 
for  the  court  to  decide  whether  he  came  within  the  description  in  the  statute  : 
Buxton  V.  Mingay,  2  Wills.  70  ;  see  tit.  Trespass. 

Executors  shall  have  reasonable  time  to  take  the  goods  of  their  testator  from 
his  mansion  :  Litt.  s.  69.  This  reasonable  time  shall  be  adjudged  by  discretion 
of  the  justices  before  whom  the  cause  dependeth.  And  so  it  is  of  reasonable 
fines,  customs  and  services,  upon  the  true  state  of  the  case  depending  before 
them  ;  for  reasonableness  in  this  case  belongeth  to  the  wisdom  of  the  law,  and 
therefore  to  be  decided  by  the  justices.  Quam  lojigum  esse  debet  non  definitur 
ill  Jure,  sed  pendet  ex  discretione  justiciariorum.  And  this  being  said  of  time, 
the  like  may  be  said  of  things  uncertain,  which  ought  to  be  reasonable,  for  no- 
thing that  is  contrary  to  reason  is  consonant  to  law:  Co.  Litt.  56,  b.  Six  days 
were  held  by  the  court  to  be  a  reasonable  time  for  removing  the  goods  of  a 
lessee  for  life  by  his  executors  after  his  death  :  Stodden  v.  Harvey^  Cro.  J.  204. 
Power  is  given  to  the  lessor's  son  to  take  the  house  to  himself  on  coming  of 
age  ;  he  must  make  his  election  within  a  reasonable  time ;  a  week  or  fortnight 
is  reasonable  ;  a  year  is  unreasonable  :  Doe  v.  Smith,  2  T.  R.  436.  A  reason- 
able time  for  countermanding  a  trust  was  held  to  be  a  question  of  law  :  Scheibel 
V.  Fail-bain,  1  B.  &  P.  388.  In  Hurst  v.  Royal  Exchange  Assurance  Co.,  5 
M.  &  C.  47,  laches  of  five  days  after  intelligence  of  the  loss,  and  before  notice 
of  abandonment  was  given,  was  held  by  the  court  to  be  too  long.  What  is  a 
convenient  time  for  the  taking  of  a  prisoner,  by  the  sheriff,  to  prison,  is  a  ques- 
tion for  the  judge  :  tit.  Sheriff.  The  question,  whether  a  market  is  held  so 
near  to  another  as  to  constitute  a  nuisance,  is  sometimes  a  question  of  law  :  tit. 
Nuisance.  And  see  further,  as  to  reasonable  time,  the  observations  of  Abbott, 
C.  J.,  in  Smith  v.  Doe  dem.  Lord  Jersey,  2  B.  &  B.  (6  E.  C.  L.  R.)  592;  infra, 
note  (o). 

^  The  construction  the  law  putteth  on  facts  founded  by  a  jury,  is  in  all  cases 
undoubtedly  the  proper  province  of  the  court :  Frost.  256. 

™  This  happens  very  generally  upon  the  question  of  reasonable  fines,  customs, 


773  PROOFS  —  DUTY    OF    THE    COURT. 

prevail  against  the  opinion  of  a  jury."  But  if,  on  the  other  hand, 
the  circumstances  do  not  bring  the  case  within  any  general  principle, 
or  definite  rule  of  law,  the  further  inference  is  necessarily  one  of 
mere  fact,  to  be  made  by  the  jury.  In  other  words,  the  rules  of 
ordinary  practice  and  convenience  become  the  legal  measure  and 
standard  of  right. 

Thus,  in  the  case  of  a  bill  of  exchange,  where  the  law  requires 
notice  of  dishonor  to  be  given  within  a  reasonable  time;  if  it  appear 
on  the  facts  proved  in  evidence,  that  the  case  is  one  falling  within  a 
rule  by  which  the  law  itself  prescribes  and  defines  what  shall  be  con- 
sidered to  be  reasonable  time,  the  question  is  a  mere  question  of 
P^„„ ,-,  law,  for  the  *law  itself,  from  the  mere  res  gestcSy  makes  the 
inference  that  the  time  was  reasonable  time."     The  duty  of 

and  services :  Co.  Litt.  56,  b.,  59,  b. ;  Hohart  v.  Uammond,  4  Co.  27,  b. ;  Stodden 
V.  Harvey,  Cro.  J.  294.  So  in  the  case  of  Bell  v.  Wardell,  Willes  202  ;  supra, 
p.  770,  where  the  plaintiff  in  trespass  justified  under  an  alleged  custom  for  the 
inhabitants  of  a  town  to  walk  and  ride  over  a  close  of  arable  land  at  all  sea- 
sonable times,  but  it  appeared  by  the  plea  that  the  trespass  was  committed 
whilst  the  corn  was  standing ;  the  court,  upon  demurrer,  decided  that  the  time 
was  not  seasonable.  In  Wright  v.  Court,  4  B.  &  C.  (10  E.  C.  L.  R.)  596 ;  the 
court  held,  on  demurrer  to  a  plea  justifying  an  imprisonment  on  a  suspicion  of 
felony,  that  the  detention  of  the  plaintiff  for  three  days,  to  give  the  prosecutor 
an  opportunity  for  collecting  witnesses,  was  an  unreasonable  time.  What  is 
necessary  for  an  infant  was  formerly  [MakareU,  v.  Bachelor,  Cro.  Eliz.  583) 
erroneously  thought  to  be  a  question  of  law:  Peters  v.  Fleming,  6  M.  &  W.  42; 
Wharton  v.  Mackenzie,  5  Q.  B.  (48  E.  C.  L.  R.)  606. 

°  We  call  those  questions  of  fact  where  the  business  is  to  know  the  truth  of 
fiicts ;  and  we  call  those  questions  of  law  where  the  matter  is  about  reasoning 
on  facts  that  are  agreed  on,  in  order  to  draw  from  them  the  consequences  which 
may  seem  to  establish  the  rights  of  the  parties:  Domat's  Pub.  L.,  B.  4,  tit.  1, 
p.  658. 

•  Williams  v.  Smith,  2  B.  &  Aid.  496  ;  Wright  v.  Shaiccross,  Ibid.  501  ;  Tin- 
dall  V.  Brown,  1  T.  R.  167.  In  Smith  v.  Doe  dem.  Lord  Jersey,  2  B.  &  B.  (6  E. 
C.  L.  R.)  592 ;  Abbott,  C.  J.,  said,  "  I  conceive  that  in  this,  as  well  as  in  all 
other  cases,  courts  of  law  can  find  out  what  is  reasonable ;  and  that  in  some 
cases  they  are  absolutely  required  to  do  so.  In  many  cases  of  a  general  nature, 
or  prevailing  usage,  the  judges  may  be  able  to  decide  the  point  themselves ;  in 
others,  which  may  depend  upon  particular  facts  and  circumstances,  the  assistance 
of  a  jury  may  be  requisite."  And  see  Startup  v.  Macdonald,  in  error,  6  M.  & 
G.  (46  E.  C.  L.  R.)  593  ;  in  which  case  the  court  considered,  that  when  bulky 
goods  were  by  contract  to  be  delivered  within  a  certain  time,  the  party  had 
until  twelve  at  night  on  the  last  day  to  deliver  them  ;  and  upon  an  issue  whether 
they  were  delivered  at  an  unreasonable  and  iiiH)roj)er  time,  the  question  was 
for  the  jury  ;  and  if  they  thought  that  at  the  time  when  they  were  tendered 
there  was  not  a  sufficient  interval  before  twelve  o'clock  for  completing  the 
delivery,  they  ought  to  have  found  the  time  was  unreasonable. 


QUESTIONS     OF    LAW    AND     FACT.  774 

the  jury  in  such  a  case  is  obviously  confined  to  the  finding  and  ascer- 
taining of  the  simple  facts  and  res  gestae ;  any  inference  of  theirs 
upon  the  subject,  that  the  time  was  or  was  not  reasonable,  would  be 
either  simply  nugatory,  or  both  nugatory  and  illegal. 

Where,  on  the  other  hand,  the  law  is  silent,  and  does  not  by  the 
operation  of  any  principle  or  established  rule  decide  upon  the  legal 
quality  of  the  simple  facts,  or  res  gestae,  it  is  for  the  jury  to  draw  the 
general  inference  of  reasonable  or  unreasonable,  in  point  of  fact.^ 
In  such  cases  the  legal  conclusion  follows  the  inference  in  fact;  in 
other  words,  the  question  as  to  reasonable  time,  &c.,  is  one  of  fact, 
and  the  time  is  reasonable  or  unreasonable,  *in  point  of  law,  r-^rjrrr-^ 
according  to  the  finding  of  the  jury  in  point  of  fact. 

If  the  question  be,  whether  reasonable  notice  has  been  given  by 
the  holder,  of  the  dishonor  of  a  bill  of  exchange  ;  and  the  evidence 
be,  that  the  holder  gave  notice  by  the  next  day's  post,  to  an  endorser, 
living  at  a  distance;  the  question  would  be  one  of  mere  law,  for  it 
would  fall  within  an  express  rule  of  law  which  determines  such  notice 
to  be  reasonable. '1  But  where  no  acknowledged  rule  or  principle  of 
law  defines  the  limits  between  reasonable  and  unreasonable,  the  ques- 
tion seems  to  be  one  for  the  jury  under  all  the  circumstances  of  the 
case." 

It  is  next  to  be  observed,  that  these  terms,  in  the  absence  of  any 
precise  rule  of  law,  always  import  a  comparison  with  some  usual 
course  and  order  of  dealing,  or  have  reference  to  general  conve- 
nience, utility  and  the  plain  principles  of  natural  justice.  Where 
the  law  is  silent,  the  jury  must  draw  the  inference,  not  as  their  own 

P  As  upon  the  question  whether  a  party  has  been  guilty  of  laches  in  not  pre- 
senting a  bill  payable  at  sight,  or  a  certain  time  after,  where  no  established 
rule  of  law  prevails:  Fry  v.  Hill,  7  Taunt.  (2  E.  C.  L.  R.)  397  ;  see  tit.  Bill 
OP  Exchange.  Whether  a  particular  covenant  is  an  usual  covenant  in  a  lease  : 
Doe  V.  Sandham,  1  T.  R.  705.  What  is  a  reasonable  time  for  carrying  away 
tithes :  Facey  v.  Hurdom,  3  B.  &  C.  (10  E.  C.  L,  R.)  213.  For  removing  a  dis- 
tress: Pitt  v.  Shew,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  208  ;  and  see  other  instances 
detailed,  infra,  pp.  779,  780. 

1  Williams  v.  Smith,  2  B.  &  Aid.  496,  supra,  n.  (o)  ;  and  see  tit.  Bill  of  Ex- 
change. 

■■  Per  Lord  Kenyon,  in  Hilton  v.  Shepherd,  6  East  14,  n. ;  Fry  v.  Hill,  7 
Taunt.  (2  E.  C.  L.  R.)  397.  If  the  rule  in  the  particular  case  is,  that  the  act 
must  be  done  within  a  reasonable  time,  and  the  courts  are  able  to  pronounce 
that  the  act  was  done  in  a  reasonable  time,  the  decision  becomes  a  legal 
precedent.  If  the  court  cannot  decide  on  the  evidence  that  the  fact  was  done 
in  a  reasonable  time,  then  a  further  finding  as  a  fact  that  the  time  was  reason- 
able is  essential. 


775  PROOFS — DUTY    OF    THE     COURT. 

casual  fancies  or  arbitrary  opinions  may  dictate,  but  according  to 
their  judgment  and  discretion,  upon  comparison  of  the  fxcts  with  the 
general  and  understood  course  of  dealing,  if  any  such  exist,  in  refer- 
ence to  the  matter  litigated  ;  and  in  the  absence  of  any  such  guide, 
"with  reference  to  mutual  convenience  and  utility,  or  the  ordinary 
rules  of  fair  and  honest  dealing  ;  for  these,  in  the  absence  of  any 
express  rule  of  law,  are  the  proper,  and  indeed  the  only,  standards 
of  comparison  of  which  the  case  admits. 

It  follows,   that   such  general   questions   of  reasonable  time,    due 

^    diligence,  and   the  like,  are  never  in  the    abstract  *neces- 
*7761        .        .  . 

•-         -■    sarily  either   mere   questions  of  law  or  questions  of  fact.* 

Whether  in  a  particular  instance  the  question  be  of  the  one  class  or 

the  other,  depends  simply  upon  the  existence  and  applicability  of  the 

rule  of  law  to  the  special  circumstances,  or  res  gestce :  if  any  such 

rule  be  applicable,  the  question  is  a  mere  question  of  law  ;  if  no  such 

rule  apply,  the  inference  is  one  of  mere  fact  for  the  jury.'     It  may 

even  happen  that  the   very   same  circumstance  which  at  one  time 

would  have  raised  a  question  of  fact,  may  at  a  subsequent  period 

^  In  the  case  of  DarhisMre  v.  Parker,  6  East  10,  Lawrence,  J.,  expressed  an 
opinion  that  reasonable  time  was  in  general  a  question  of  law,  because  in  the 
case  of  Tindall  v.  Brown,  1  T.  R.  167,  the  jury  found  merely  the  circumstances. 
But. with  great  deference  to  the  opinion  of  that  very  learned  judge,  it  seems  to 
be  going  too  far  to  infer  that  reasonable  time  must  always  be  a  conclusion  of 
law,  because  it  was  so  considered  in  the  particular  case.  In  that  case,  the  bill 
being  dishonored  on  the  5th,  and  notice  not  given  till  the  7th,  although  the 
parties  lived  within  twenty  minutes'  walk  of  each  other,  the  jury  nevertheless 
found  for  the  plaintiff;  but  the  court  held  that  there  was  a  sufficient  foundation 
for  laying  down  a  legal  rule,  then  but  imperfectly  established,  as  to  the  time  of 
notice.  Lord  Mansfield  said,  "What  is  a  reasonable  notice  is  partly  a  question 
of  fact  and  partly  a  question  of  law.  It  may  depend  in  some  measure  on  facts, 
such  as  the  distance  at  which  parties  live  from  each  other,  the  course  of  post, 
&c.,  but  whenever  a  i-ule  can  he  laid  down  with  respect  to  this  reasonableness, 
that  should  be  decided  by  the  court,  and  adhered  to  by  every  one,  for  the  sake 
of  certainty." 

These  observations  remove  all  difficulty :  he  docs  not  say  that  reasonable 
time  must  always  be  an  inference  of  law  upon  the  facts,  but  only  where  the  law 
can  lay  down  a  rule  as  to  reasonaljlcness,  which  can  only  be  recognizing  a 
practice  already  established,  or  by  applying  legal  principles  to  some  defined 
combination  of  circumstances.  And  in  accordance  with  this  is  the  decision  in 
Straker  v.  Graham,  4  M.  &  W.  721  ;  and  see  per  Vaughan,  J.,  4  Bing.  N.  C. 
(33  E.  C.  L.  R.)  268. 

'  Intention  is  a  mere  matter  of  fact,  where  the  law  does  not  infer  the  inten- 
tion from  the  fact  itself:  per  Lord  Mansfield,  E.  v.  Woodfall,  5  Burr.  2661  ; 
see  tit.  Intention  and  Malice. 


QUESTIONS     OF    LAW    AND    FACT.  77G 

raise  a  mere  question  of  law ;  a  rule  of  law  which  governs  the  case 

having  been  established  in  the  interval." 

*Cases  of  this  kind,  where  the  iury  are  to  find  the  special 

y  ■        J    J  I  r*7771 

facts,  and  where  the  court  can  decide  upon  the  legal  quality    •-         -^ 

of  those  facts  by  the  aid  of  established  rules  of  law,  independently 
of  any  general  inference  or  conclusion  to  be  drawn  by  a  jury,  have 
been  sometimes  termed  mixed  questions  of  law  and  fact.  Thus,  it 
was  said,''  that  the  question  of  reasonable  notice  of  the  dishonor 
of  a  bill  of  exchange  was  a  mixed  question.  That  the  situation  and 
place  of  parties,  the  post-hours,  and  other  matters  of  that  sort,  are 
facts  to  be  ascertained  by  the  jury ;  but  whether  under  the  circum- 
stances notice  was  given  in  reasonable  time,  is  a  question  of  law, 
upon  which  they  ought  to  receive  the  direction  of  the  judge.  Now, 
it  seems  to  be  clear,  that  whenever  any  rule  or  principle  of  law  ap- 
plies to  the  special  facts  proved  in  evidence,  and  determines  their 
legal  quality,  its  application  is  matter  of  law  ;  and  on  the  other 
hand,  that  whenever  the  special  facts  and  circumstances  are  such 
that  the  court  cannot  by  the  aid  of  any  legal  rule  or  principle  decide 
upon  the  legal  quality  of  the  facts,  it  is  necessary  that  the  jury 
should  draw  the  inference  *in  fact  as  a  mere  question  in 
fact,  Avith  reference  to  the  ordinary  course  and  practice  of  *-  -' 
dealing,  and  the  general  principles  of  morality  and  utility.  It  may 
therefore  be  doubted  whether  the  expression  "  mixed  question  of  law 
and  fact,"  be  in  strict  propriety  applicable  to  the  former  class  of 
cases.     For  wherever  the  law  uses  a  general  technical  and  abridged 

"  The  rule  as  to  notice  to  a  tenant  to  quit  formerly  was  that  reasonable  notice 
should  be  given  ;  but  in  the  reign  of  Henry  VIII.  it  was  decided  that  six 
months'  notice  was  necessary  :  see  Doe  v.  Spence,  6  East  123. 

'^  See  Darhishire  v.  Parker^  6  East  3 ;  and  the  observations  of  Grose,  J.,  Ibid. 
The  observations  of  Lord  Mansfield,  stqjra,  note  (s),  and  BuUer,  J.,  in  Tindall 
V.  Broivn,  1  T.  R.  167.  The  terming  of  any  question  a  mixed  question  of  law 
and  fact,  is  chargeable  with  some  degree  of  indistinctness.  Questions  of  fact 
and  law  are  not  in  sti'ictness  ever  mixed  ;  it  is  always  for  the  jury  to  decide 
the  one  and  the  court  the  other,  however  complicated  the  case  may  be.  In 
some  cases  the  main  difficulty  may  consist  in  ascertaining  the  facts,  where  the 
application  of  the  law  to  the  ascertained  facts  admits  of  no  doubt ;  in  another 
the  facts  may  be  clear  and  simple,  and  their  legal  effect  doubtful ;  but  still  in 
each  case  the  provinces  of  the  court  and  jury  are  perfectly  plain  and  distinct. 
It  is  true  that  in  some  instances  the  court  could  not,  without  the  aid  of  a  con- 
clusion of  facts  drawn  by  a  jury,  apply  the  law  ;  but  this  consideration  does 
not  properly  occasion  any  intermixture  of  or  confusion  of  the  respective  func- 
tions of  the  court  and  jury  ;  for  the  latter,  in  drawing  their  conclusion,  still 
confine  themselves  to  mere  matter  of  fact. 


778  PROOFS — DUTY    OF    THE     COURT. 

form  of  expression,  the  question  arising  upon  it  is  partly  a  question 
of  law,  partly  a  question  of  fact ;  the  jury  must  in  all  instances 
find  the  facts  which  form  the  basis  of  the  legal  judgment,  unless 
they  be  admitted  by  the  parties  ;  and  it  is  for  the  court,  in  all  cases, 
to  decide  upon  the  legal  quality  of  those  facts.  So  universal  is  this 
rule,  that  it  applies  even  in  those  instances  where,  in  the  absence  of 
any  rule  or  principle  of  law  which  enables  the  court  to  draw  the  con- 
clusion directly  and  immediately  from  the  special  facts,  it  is  essential 
that  the  jury  should  draw  the  inference  of  reasonable  time  as  a  mat- 
ter of  mere  fact ;  for  even  here  the  adjudication  by  the  court,  that 
the  time  is  reasonable,  involves  matter  of  law  as  well  as  matter  of 
fact,  although  the  question  whether  the  time  be  reasonable,  in  point 
of  law,  be  dependent  on  the  question  whether  it  be  reasonable  in 
point  of  fact.  If  the  jury  were  by  their  verdict  to  find  all  the 
special  facts,  and  were  also  to  find  that  the  time  was  reasonable  in 
point  of  fact,  the  judgment  of  the  court  upon  this  finding  would 
still  in  all  cases  be  matter  of  law.  If  in  such  a  case  the  mere  facts 
fell  within  any  established  rule  or  principle,  the  special  inference 
made  by  the  jury  would  be  entirely  nugatory,  and  the  court  would 
apply  the  rule  of  law  to  the  special  facts,  even  although  the  legal 
inference  should  be  contrary  to  the  inference  in  fact.^  In  the 
absence  of  any  such  rule,  the  judgment  of  the  court,  that  the  time 
was  reasonable,  would  follow  the  conclusion  in  fact;  but  it  would 
involve  that  which  is  mere  matter  of  legal  consideration  and  judg- 
r*77Q1  ^^^^^1  t^^^  ^^5  *^^^®  adjudication  that  no  legal  rule  applied  to 
the  facts,  and  that  the  question  of  law  was  consequently 
dependent  on  the  question  in  fact.  In  s<"rictness,  therefore,  as  the 
lethal  application  of  every  technical  expression  recognized  by  the  law 
is  partly  a  matter  of  fact  and  partly  a  matter  of  law,  it  may  be 
doubted  whether  the  terms  "  mixed  question  of  law  and  fact"  serve 
accurately  to  distinguish  any  particular  class  of  cases.  All  technical 
expressions  whatsoever,  such  as  asportation,''  conversion,^  acceptance,^ 
and  the  like,  are  in  their  application  partly  matters  of  law,  partly 
matters  of  fact. 

These  observations  may  not,  perhaps,  be  deemed  to  be  altogether 
unimportant,  when  it  is  considered  how  essential  it  is  to  preserve  the 

y  For  it  would  be  a  wrong  conclusion  in  point  of  law:  see  R.  v.  Whittlehury, 
6  T.  R.  40G. 
»  See  tit.  Lakceny.  "  See  tit.  Trover. 

'•  See  tit.  Frauds,  Statute  of. 


QUESTIONS     OF    LAW    AND     FACT.  779 

distinction  between  law  and  fact,  and  to  prevent  any  misconception 
as  to  the  relative  functions  of  courts  and  juries.'' 

Some  of  the  cases  to  which  these  principles  apply  will  next  be 
adverted  to.  Reasonable  time,  &c.,  is  always  a  question  of  fact  in 
the  absence  of  any  rule  or  principle  of  law  applicable  to  the  circum- 
stances. Thus,  in  an  action  for  not  removing  goods  distrained  for 
rent,  after  the  expiration  of  five  days,  it  is  a  question  for  the  jury, 
whether  they  were  removed  within  a  reasonable  time  afterwards.^ 
So  whether  the  sherifi"  or  his  agents  have  used  due  diligence  in  at- 
tempting to  discover  and  arrest  a  defendant  under  civil  process.* 
Even  the  question,  whether  an  attorney  has  been  guilty  of  negli- 
gence, in  not  complying  *with  the  practice  of  the  court,  is  a  r^yQA-i 
question  for  a  jury.^ 

In  the  case  of  Nohle  v.  Kennaway,^  where  the  defence  to  an  action 
on  a  policy  of  insurance  was,  that  there  had  been  unnecessary  delay 
in  unloading  the  cargoes,  it  was  held,  that  this  was  a  question  to  be 
decided  by  a  jury,  who  could  not  decide  without  being  informed  as  to 
the  usual  practice  of  the  particular  trade.  Where  the  defence  to  an 
action  for  the  price  of  goods  sold  and  delivered  was,  that  they  did 
not  correspond  with  the  sample,  it  was  left  to  the  jury  to  say  whether, 
under  the  circumstances,  the  defendant  had  rejected  the  goods  within 
a  reasonable  time.*"  So,  in  a  seeking  voyage,  a  reasonable  time  for 
the  seeking  adventure  must  be  allowed  ;  and  in  an  action  on  a  policy 
on  such  a  ship,  the  question  whether  the  time  be  reasonable  must  be 
determined  by  the  state  of  things  at  the  port  where  the  ship  happens 
to  be.'     And  where  overseers  referred  certain  matters  in  dispute  to 

"  It  is  of  the  greatest  consequence  to  the  law  of  England,  and  to  the  subject, 
that  the  powers  of  the  judge  and  jury  be  kept  distinct ;  that  the  judge  determine 
the  law,  and  the  jury  the  fact;  and,  if  ever  they  come  to  be  confounded,  it  will 
prove  the  confusion  and  the  destruction  of  the  law  of  England  :  per  Hardwicke, 
C.  J.,  R.  V.  Poole,  Cases  tempt.  Hard.  28. 

^  Pitt  V.  Shew,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  208  ;  and  see  tit.  Distress. 

®  Hooper  v.  Lane,  10  Q.  B.  (59  E.  C.  L,  R.)  546 ;  and  see  tit.  Sheriff,  Neg- 
ligence. 

'  Hunter  v.  Caldwell,  10  Q.  B.  (59  E.  C.  L.  R.)  69. 

8  Doug.  510. 

"  Parker  v.  Palmer,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  387 ;  Coleman  v.  Gibson,  1 
M.  &  Rob.  168.  What  is  a  reasonable  time  for  the  delivery  of  bulky  goods 
seems  to  be  a  question  of  fact  for  the  jury  :  Startup  v.  McDonald,  2  M.  &  G. 
(40  E.  C.  L.  R.)  395.  Although  the  judgment  in  this  case  was  reversed  in 
1  Cam.  Scacc,  6  M.  &  G.  (46  E.  C.  L.  R.)  593,  supra,  p.  774,  note  (o) ;  the 
grounds  on  which  it  was  overruled  seem  to  leave  the  proposition  above  quoted 
untouched. 

^Phillips  v.  Irving,  7  M.  &  G.  (49  E.  C.  L.  R.)  325. 


780  PROOFS — DUTY  OF  THE  COURT. 

arbitration,  and  provided  that  certain  costs  of  the  other  party  should 
be  taxed  and  paid  by  the  overseers,  it  was  held  that  they  were  to  be 
paid  in  a  reasonable  time,  and  that  what  was  a  reasonable  time  was 
a  question  for  the  jury.'' 

In  the  cases  of  Tindal  v.  Brown^  and  Darhuldre  v.  Parker,  it  was 
said,™  that  what  is  reasonable  notice  of  the  dishonor  of  a  bill  of 
r*78n  ^-'^c^^'^G®  is  a  question  of  law  arising  *upon  the  facts;  and 
that  a  jury  in  such  cases  ought  to  receive  the  directions  of 
the  judge;  a  position  incontrovertibly  true  wherever  the  law  affords 
a  rule  which  governs  the  case,  for  then  the  finding  of  the  jury,  that 
the  time  is  reasonable  or  unreasonable  in  point  of  fact,  cannot  be 
placed  in  competition  with  the  settled  rules  and  principles  of  law, 
and  can  never  prevail  but  where  the  law  is  silent,  and  where  the  gen- 
eral rules  of  law,  founded  upon  a  knowledge  and  experience  of  their 
general  utility,  are  from  the  peculiar  nature  of  the  case  supposed  to 
be  inapplicable.  Thus,  also,  what  is  a  reasonable  time  for  which  a 
suspected  party  may  be  committed  for  re-examination,  is  a  question 
for  the  court  to  determine,  the  jury  ascertaining  the  facts  upon 
which  the  court  is  to  found  its  determination.'' 

The  existence  of  probable  cause  was  formerly  treated  as  a  question 
or  inference  of  law."  In  an  action  for  a  malicious  prosecution,  the 
facts  constituting  the  grounds  of  suspicion  were  set  forth  by  the  de- 
fendant in  his  plea,  and  the  plaintiff"  demurred,  if  they  did  not  amount 
to  reasonable  and  probable  cause. ^  In  later  times,  it  was  not  un- 
frequently  treated  as  a  question  of  fact  for  the  jury.''  The  probable 
cause  of  prosecution  must  necessarily  consist  in  the  circumstances  of 
the  case  within  the  defendant's  knowledge,  which  tended  to  throw 
suspicion  on  the  plaintiff".  The  existence  of  such  circumstances,  and 
their  force  and  tendency,  were  thought  to  be  questions  rather  of  fact 
than  of  law ;  for  the  eff'ect  was  to  be  measured  by  sound  sense  and 
discretion  rather  than  by  any  rule  of  law,  which  could  not  measure 

^  Burton  v.  Griffiths,  11  M.  &  W.  817.  '  1  T.  R.  1G7.  • 

""  6  East  10.  But  see  supra,  pp.  776,  777,  and  StraJcer  v.  Graham,  4  M.  &  W. 
721. 

"  Davis  V.  Cap2)er,  10  B.  &  C.  (21  E.  C.  L.  R.)  28  -,  4  C.  &  P.  (19  E.  C.  L.  R.) 
134  ;   Cave  v.  Mountain,  1  M.  &  G.  (39  E.  C.  L.  R.)  2G0. 

°  Coxe  V.  Wirrall,  Cro.  Jac.  193. 

P  Brooks  V.  Warwick,  2  Stark.  C.  (3  E.  C.  L.  R.)  389 ;  Isaacs  v.  Brand,  Ibid. 
167. 

•>  See  Candell  v.  London,  1  T.  R.  520,  n. ;  Johnstone  v.  Sutton,  1  T.  R.  544 ; 
Rei/nolds  v.  Kenned)/,  1  Wils.  232  •,  Goldiny  v.  Crowle,  B.  N.  P.  14  -,  Bcckwith  v. 
Phitby,  6  B.  &  C.  (13  E.  C.  L.  R.)  037 ;  see  tit.  Malicious  Persecution. 


QUESTIONS     OF     LAW    AND     FACT.  782 

mere  probability.  If  such  circumstances  did  exist,  it  was  *and  rt'TQ-yi 
still  is  presumed  that  the  defendant  acted  upon  them ;  but 
this  is  not  conclusively  presumed,  for  it  is  clear,  that  if,  notwithstand- 
ino;  the  existence  of  unfavorable  circumstances,  the  defendant  knew 
that  the  plaintiff  was  innocent,  he  would  be  liable  in  damages;  for 
as  to  him,  who  was  better  informed,  the  circumstances  could  afford  no 
probable  cause  or  ground  of  accusation.''  It  is,  however,  now  con- 
clusively settled  that  the  question  of  reasonable  and  probable  cause 
is  a  question  of  law.  "  In  the  more  simple  cases,"  says  Tindal,  C. 
J.,  in  delivering  the  judgment  of  the  Court  of  Exchequer  Chamber 
in  Panton  v.  Williams,^  "  where  this  question  depends  entirely  on 
the  proof  of  the  facts  and  circumstances  which  gave  rise  to  and 
*attended  the  prosecution,  no  doubt  has  ever  existed  from  r^Yoq-i 
the  time  of  the  earliest  authorities,  but  that  such  question  is 
purely  a  question  of  law  to  be  decided  by  the  judge."  "There  have 
been  some  cases  in  the  later  books  which  appear  at  first  sight  to 
have  somewhat  relaxed  the  application  of  that  rule,  by  seeming  to 
leave  more  than  the  mere  question  of  the  facts  proved  to  the  jury; 
but  upon  further  examination  it  will  be  found,  that  although  there 
has  been  an  apparent,  there  has  been  no  real  departure  from  the  rule. 

*■  Sir  Anthony  AsJiley^s  case,  12  Co.,  infra,  92  ;  notes  [t),  [u),  [x)  ;  Davis  v. 
Russell,  5  Bing.  (15  E.  C.  L.  K.)  3^4  ;  where  the  judo;e,  having  directed  the  jury- 
to  consider  whether  the  circumstances  afforded  the  defendant  reasonable  ground 
for  supposing  that  the  pUiintiff  had  committed  a  felony,  and  whether  in  his  situ- 
ation they  would  have  acted  as  he  had  done,  the  court  held  that  the  direction 
was  substantially  correct.  Best,  C.  J.,  in  giving  judgment,  observed,  it  was  for 
the  jury  to  say  whether  they  believed  the  facts;  and,  if  they  believed  them, 
whether  the  defendant  was  acting  honestly.  In  some  cases  it  becomes  a  nice 
question  whether  it  is  necessary  to  trace  home  to  the  defendant  knowledge  of 
the  exact  facts  which  show  in  truth  there  was  not  reasonable  and  probable  cause, 
or  whether  it  is  not  incumbent  on  the  defendant  to  show  his  ignorance :  see 
Micliell  V.  Williams,  11  M.  &  W.  205.  If  A.,  having  an  opinion  of  counsel  in 
his  favor,  arrests  B.,  he  is  not  liable  to  an  action  for  a  malicious  ai'rest,  if  he 
acted  honestly  on  that  opinion  :  secus,  if  he  believed  he  had  no  cause  of  action : 
Ravenga  v.  Macintosh,  2  B.  &  C.  (9  E.  C.  L.  R.)  693  ;  but  this  is  with  reference 
to  the  question  oi  malice :  and  see  Mitchell  v.  Jenkins,  5  B.  «&  Aid.  (27  E.  C.  L. 
R.)  588  ;  and  tit.  Malicious  Arrest. 

'  2  Q.  B.  (42  E.  C.  L.  R.)  169.  In  this  case  both  the  law  and  the  fact  were  left 
entirely  to  the  jury,  and  the  court  of  error  awarded  a  venire  de  novo  ;  and  see 
Michell  V.  Williams,  11  M.  &  W.  205  ;  Turner  v.  Ambler,  10  Q.  B.  (59  E.  C.  L. 
R.)  252,  West  v.  Braxendale,  9  C.  B.  (67  E.  C.  L.  R.)  141.  That  reasonable 
degree  of  belief  which  is  a  criterion  of  bona  fides,  when  the  question  is  whether 
a  party  thought  he  was  acting  under  a  statute  which  entitled  him,  if  so  acting, 
to  notice  of  action,  is  a  question  for  the  jury :  Cox  v.  Reid,  13  Q.  B.  (66  E.  C. 
L.  R.)  558. 


783  PROOFS — DUTY    OF    THE     COURT. 

Thus,  in  some  cases,  the  reasonableness  and  probability  of  the  ground 
for  prosecution  has  depended,  not  merely  upon  the  proof  of  certain 
facts,  but  upon  the  question,  whether  other  facts  which  furnished 
an  answer  to  the  prosecution  were  known  to  the  defendant  at  the 
time  it  was  instituted  :^  again,  in  other  cases,  the  question  has  turned 
upon  the  inquiry,  whether  the  facts  stated  to  the  defendant  at  the 
time,  and  which  formed  the  ground  of  the  prosecution,  were  be- 
lieved by  him  or  not ;"  in  other  cases,  the  inquiry  has  been,  whether 
from  the  conduct  of  the  defendant  himself  the  jury  will  infer  that 
he  was  conscious  that  he  had  no  reasonable  or  probable  cause.''  But 
in  these  and  many  other  cases  which  might  be  suggested,  it  is  obvi- 
ous that  the  knowledge,  the  belief,  and  the  conduct  of  the  defendant 
are  really  so  many  additional  facts  for  the  consideration  of  the  jury ; 
so  that  in  fact  nothing  is  left  to  the  jury  but  the  truth  of  the  facts 
proved,  and  the  justice  of  the  inference  to  be  drawn  from  such 
facts :  both  which  investigations  fall  within  the  legitimate  province 
of  the  jury,  whilst  at  the  same  time  they  have  received  the  law  from 
the  judge,  that  according  as  they  find  the  facts  proved  or  not  proved, 
and  the  inferences  warranted  or  not,  there  was  reasonable  and  pro- 
bable ground  for  the  prosecution  or  the  reverse.     And  such  being 

,- ,  N,^ .-,    *the  rule  of  law  where  the  facts  are  few  and  the  case  simple, 

r*7841  .  . 

•-         -J    we  cannot  hold  it  to  be  otherVvise  where  the  facts  are  more 

numerous  and  complicated." 

The  inference  of  fraud  is  also  in  some  cases  a  mere  question  of 
law  arising  upon  the  facts;  in  others  it  is  a  mere  matter  of  fact.^ 
Where  a  trader  aliens  the  whole  of  his  effects  for  a  past  debt,  he  is 
guilty  of  fraud  against  his  creditors,  and  commits  an  act  of  bank- 
ruptcy ;  and  the  court  will  infer  fraud  from  the  facts,  without  the 
aid  of  a  jury.^     If  a  creditor,  knowing  that  his  debtor  was  going  to 

'  James  v.  Phelps,  11  A.  &  E.  (39  E.  C.  L.  R.)  483. 

°  Uaddrick  v.  Heslop,  12  Q.  B.  (64  E.  C.  L.  R.)  267  ;  accord  :  Turner  v.  Ambler, 
10  Q.  B.  (59  E.  C.  L.  R.)  252. 

*  Ilinton  V.  Heather,  14  M.  &  W.  131. 

y  Per  Lord  Mansfield,  in  Foxcrqft  v.  Devonshire,  2  Burr.  937.  Fraud  and 
covin  is  always  a  question  or  judgment  of  law  on  facts  and  intention  ;  per  Lord 
Ellenboroujfh,  Doe  v.  Manning,  9  East  59.  But  the  intention  is  frequently  a 
question  of  fact.  Upon  an  issue  taken  generally  on  an  allegation  of  fi'aud,  it  is 
a  question  of^ fact,  and  if  there  be  no  fraud  in  fact,  there  is  none  in  law  :  per  Bul- 
ler,  J.,  Pease  v.  Naylor,  5  T.  R.  80.  The  obtaining  of  a  bill  of  exchange  by  fraud 
is  a  question  of  fact :  Gixw  v.  Beoan,  3  Stark.  C.  (3  E.  C.  L.  R.)  134 ;  and  see 
tit.  Bill  of  Exchange. 

'  Newton  v.  Chandler,  7  East  138  ;  Linton  v.  Bartlett,  3  Wils.  47  ;  Wilson  v. 
Day,  2  Burr.  827 ;  ^iebcrt  v.  tipooner,  1  M.  &  W.  714  ;  Lenden  v.  Sharp,  8  M.  & 


QUESTIONS    OF    LAW    AND    FACT.  784 

break,  were,  before  any  direct  act  of  bankruptcy,  to  procure  payment 
by  threats,  the  law  would  pronounce  that  this  was  not  fraudulent." 

Or  the  question  may  be  one  of  fact  for  the  jury :  as  where  it  de- 
pends not  on  the  mere  act  done,  but  upon  the  particular  intention 
with  which  it  was  done :''  as  where  a  trader  conveys,"  or  a  debtor 
assigns  his  property,  to  defraud  creditors.*^  So  it  is  a  question  of 
fiict  whether  fraud  has  been  practised  in  procuring  a  blind  man  to 
execute  a  will.® 

*The  inference  as  to  malice  and  intention,  also,  may  be  r-nr-, 
one  either  of  mere  law,  as  in  cases  of  homicide,  where  the  law  ^  -^ 
frequently  infers  a  malicious  intention  from  the  facts,  independently 
of  any  conclusion  drawn  by  the  jury.^  Or  of  mere  fact,  as  in  cases 
where  some  malicious  intention  in  particular  is  essential  to  the 
charge;^  or  where  the  nature  of  an  act  depends  on  the  particular 
intention  of  the  parties.'' 

The  question,  whether  a  party  had  knowledge  of  a  particular  fact, 
is  usually  a  question  of  fact  to  be  left  to  the  jury.' 

G.  (46  E.  C.  L.  R.)  895  ;  Eastwick  v.  Caillaud,  5  T.  R.  420.  But  it  is  otherwise 
of  a  sale  or  transfer  for  full  consideration  then  given :  Baxter  v.  Pritchard,  1 
Ad.  &  E.  (28  E.  C.  L.  R.)  457  ;  Rose  v.  Haycock,  Ibid.  460  ;  Wainwrightv.  Cle- 
ment, 3  M.  &  W.  385  ;  6  Bing.  N.  C.  (37  E.  C.  L.  R.)  86. 

^  Per  Lord  Mansfield,  2  Burr.  938.  ^  And  see  tit.  Intention. 

"  Newton  v.  Chantler,  7  East  145  ;  Siebert  v.  Spooner,  1  M.  &  W.  714  ;  and  see 
tit.  Bankrupt. 

■*  Notes  to  Twyne^s  case,  1  Smith  L.  C.  9  ;  and  see  tit.  Fraudulent  Convey- 
ance. 

^  Per  Heath,  J.,  Longchamp  v.  Fish,  2  N.  R,  419. 

^  See  tits.  Libel,  Murder. 

8  See  tits.  Intention,  Libel,  Malice,  Malicious  Arrest,  Malicious  In- 
juries, Malicious  Prosecution.  On  a  prosecution  for  larceny,  the  quo  animo  is 
for  the  jury  :  R.  v.  Phillips,  East  P.  C.  662  -,  see  tit.  Larceny.  So,  to  what  pur- 
pose trees  cut  down  by  a  tenant  were  intended  to  be  applied  by  him  :  Doe  v. 
Wilson,  11  East  56  ;  see  tit.  Copyhold. 

^  Powis  V  Smith,  5  B.  &  Aid.  (7  E.  C.  L.  R)  850.  So,  according  to  the  civil 
law,  "  Quicunque  intentionem  facto  superstruit  factum  id  tenetur  probare,  ut  non 
neganti  sed  adjirmanti  incumbat  probatio.^^  The  intention  of  the  parties  in  pay- 
ing or  receiving  rent  is  for  the  jury  :  per  Gould,  J.,  1  H.  Bl.  312;  Ooodright 
V.  Carder,  6  T.  R.  319  ;  see  tit.  Payment. 

'  Harrattv.  Wise,  9  B.  &  C.  (17  E.  C.  L.  R.)  712;  where  it  was  held  that 
knowledge  on  the  part  of  a  captain  of  a  vessel,  of  the  fact  that  a  foreign  port 
was  in  a  state  of  blockade,  was  not  to  be  presumed  on  the  ground  that  notice 
to  a  State  was  notice  to  all  the  subjects  of  that  State,  but  was  to  be  proved  as 
matter  of  fact.  It  is  a  question  of  fact  for  a  jury  to  whom  credit  was  given  by 
the  vendor  of  goods  :  Leggat  v.  Reed,  1  C.  &  P.  (12  E.  C.  L.  R.)  16,  and  note  ; 
Bentley  v.  Grijin,  5  Taunt.  (1  E.  C.  L.  R.)  356. 


785  PROOFS  —  DUTY    OF     THE     COURT. 

The  question  whether  a  sheriff,''  or  attorney,'  or  agent  has  been 
guiltj  of  negligence,  is  one  of  fact  for  the  decision  of  the  jury,  even 
where  it  consisted  in  not  complying  with  the  practice  of  the  court." 

What  shall  be  said  to  be  the  next  sessions,  that  is,  the  next  prac- 
ticable sessions,  for  an  appeal  against  a  removal  order,  is  a  question 
r*78n  *^^^^^*'  inasmuch  as  it  frequently  *depends  on  the  particular 
situation  of  the  parties,  and  the  circumstances  of  the  case." 

Reputed  ownership,  it  seems  is  a  question  of  fact  rather  than  of 
law.° 

An  allegation  that  a  person  is  employed  in  the  service  of  the 
customs  is  an  allegation  of  fact :  the  allegation  that  it  was  his  duty 
as  such  to  seize  goods  which  on  importation  are  forfeited,  is  matter 
of  law.P 

The  construction  of  all  written  documents  is  matter  of  pure  law, 
as  it  seems,  in  all  cases  where  the  meaning  and  intention  of  the 
framers  is  by  law  to  be  collected  from  the  document  itself;  as  in  the 
instances  of  judicial  records,  deeds,  &c. ;''  but  where  the  meaning  is  to 
be  judged  of  by  the  aid  of  extrinsic  circumstances,  the  construction 
is  usually  a  question  of  fact  for  the  jury.'"  Thus,  in  the  case  of  libel, 
the  meaning  of  the  writer  and  the  truth  of  the  innuendoes  are  ques- 
tions of  fact.  So  in  a  prosecution  for  sending  a  threatening  letter, 
the  question,  whether  it  contains  a  threat,  if  doubtful,  is  to  be  de- 
cided by  the  jury.^  But  where  there  is  evidence  of  facts,  as  well  as 
documentary  evidence  from  which  the  nature  of  a  contract  is  to  be 
derived,  the  question,  what  was  the  contract  betAveen  the  parties,  is 
for  the  jury.'     If  the  context  shows   that  a  word  is  not  used  in  its 

•^  Hoojjer  v.  Lane,  10  Q.  B  (59  E.  C.  L.  R.)  546. 

'  Hunter  v.  Caldwell,  10  Q.  B.  (59  E.  C.  L.  R.)  69. 

™  See  tit.  Negligence. 

°  R.  V.  Coode,  4  Burn.  145,  26th  edit. ;  R.  v.  Justices  of  the  East  Riding  of 
Yorkshire,  Ibid. ;  R.  v.  Justices  of  Essex,  1  B.  &  Aid.  210 ;  R.  v.  Watts,  7  Ad. 
&  E.  (34  E.  C.  L.  R.)  461. 

"  Per  Buller,  J.,  in  Walker  v.  Burnell,  Doug.  317  ;  Lingham  v.  Biggs,  1  B.  & 
P.  82;  andj:;er  Lawrence,  J.,  in  Horn  v.  Baker,  9  East  241  ;  Watson  v.  Peache, 
1  Bing.  N.  C.  (27  E.  C.  L,  R.)  327.  But  it  is  not  unfrequently  a  question  of 
law  ;  see  tit.  Bankrui'TCY. 

p  R.  V.  Everett,  8  B.  &  C.  (15E.  C.  L.  R.)  114. 

'^  See  supra,  p.  648,  et  seq. 

■■  Any  ambiguity  on  the  face  of  a  document  must  be  explained  by  the  judge, 
but  if  it  arise  from  extrinsic  evidence  it  must  be  construed  by  the  jury :  Smith 
V.  Thompson,  8  C.  B.  (65  E.  C.  L.  R.)  44. 

*  Girdwood' s  case.  Leach,  C.  C.  L.  42 ;  and  see  Tyler'' s  case,  Moo.  C.  C.  428. 

•■  Moore  v.  Garwood,  4  Ex.  681. 


QUESTIONS     OF     LAAV    AND     FACT.  786 

primary  or  strict  sense,  the  judge  may  adopt  the  construction 
*indicated  by  the  context;  or  if  the  surrounding  circum-  r+yoy-i 
stances  at  the  time  the  instrument  was  made,  show  that  the 
parties  intended  to  use  the  word  in  some  secondary  meaning,  the 
judge  may  construe  it  according  to  such  intention  of  the  parties. 
But  if  there  is  evidence  that  the  word  was  used  in  a  sense  peculiar 
to  a  trade,  business,  or  place,  or  if  its  meaning  depends  upon  the 
usage  of  the  place  where  anything  under  the  instrument  is  to  be 
done,  the  jury  must  say  whether  the  parties  have  used  it  in  that 
peculiar  sense.  They  must  also  give  the  meaning  of  some  technical 
words."  Where  an  agreement  is  not  contained  in  any  formal  instru- 
ment, but  is  collected  from  letters  which  have  passed  between  the 
parties,  their  construction,  where  their  terms  are  plain  and  unambig- 
uous, is  also  for  the  consideration  of  the  court ;  but  where  they  are 
written  in  so  dubious  and  uncertain  a  manner  as  to  be  capable  of 
different  constructions,  and  can  be  explained  by  other  circumstances, 
it  is  for  the  jury  to  decide  on  the  whole  of  the  evidence.''  And  it 
seems  that  in  general,  where  the  evidence  of  a  contract  is  matter  of 
inference  from  circumstances,  it  is  a  matter  of  fact  for  the  jury. 

*It  is  the  peculiar  province  of  the  jury  to  draw  the  proper  r;):rTr,o-i 
conclusion  in  fact  from  mere  circumstantial  evidence  of  the 
fact,  and  to  deduce  the  proper  inference  in  all  cases  of  indirect  evi- 
dence, except  in  those  instances  where  the  law  makes  particular  facts 
the  foundation  of  a  legal  presumption;  and  even  in  such  instances, 
where  the  legal  presumption  is  not  conclusive,  it  is  still  for  the  jury 
to  decide  on  the  evidence  whether  the  legal  primd  facie  presumption 
or  intendment  is  repelled  by  contrary  evidence. 

It  also  belongs  to  the  court  to  decide  all  collateral  matters  arising 

"  Simpson  v.  Margitson,  11  Q.  B.  (63  E.  C.  L.  R.)  23;  Hitchin  v.  Groom,  5 
C.  B.  (57  E.  C.  L.  R.)  515;  Neilson  v.  Harford,  8  M.  &  AV.  806  ;  Hutchinson 
V.  Boivker,  5  M.  &  W.  535 ;  Morrell  v.  Frith,  3  M.  &  W.  402  ;  see  supra,  p.  701, 
et  seq. 

^  Per  Buller,  J.,  Macbeath  v.  Haldimand,  1  T.  R.  182.  Note,  that  Willes,  J., 
in  the  same  case,  was  of  opinion  that  the  construction  of  letters  generally  was 
proper  for  the  jury ;  but  Buller,  J.,  intimated  his  dissent  from  the  general  pro- 
position ;  and  see  Baildon  v.  Walton,  1  Ex.  617;  Morrell  v.  Frith,  3  M.  &  W. 
402.  In  Stammers  v.  Dixon,  7  East  200,  where  the  question  was  whether  land 
■was  parcel  of  the  plaintiff's  freehold  or  the  defendant's  copyhold,  and  evidence 
given  of  acts  of  ownership,  and  copyhold  admissions,  it  was  held  that  the  effect 
of  the  admissions  was  matter  of  law  for  the  Court ;  and  the  result  of  that  case 
seems  to  be,  that  the  jury  were  to  find  upon  the  whole  of  the  case,  giving  effect, 
as  far  as  the  documents  were  concerned,  to  the  construction  put  upon  them  by 
the  Court. 


788  PROOFS — DUTY  OF  THE  COURT. 

in  the  course  of  tlie  trial.  Thus,  it  is  for  the  court  in  all  cases  to  de- 
termine upon  the  competency  of  witnesses,  and  the  admissibility^ 
of  particular  evidence  with  reference  to  the  facts  in  issue,  or  to  the 
allegations  on  the  record,  even  although  the  admissibility  of  the  evi- 
dence should  depend  on  matter  of  fact.  And  questions  upon  such 
matters  cannot  be  put  to  the  jury/  Even  if  a  preliminary  question 
arises,  as,  for  instance,  whether  the  person  be  an  agent  of  one  of  the 
parties  or  no,  in  order  to  let  in  evidence  of  admissions  made  by  him, 
the  judge  must  decide  it,  although  it  may  afterwards  be  a  question 
for  the  jury  in  order  to  dispose  of  an  issue  in  the  cause."'  And  in  all 
cases  the  question  whether  evidence  be  admissible  or  not  is  a  question 
to  be  decided  by  the  judge  alone,  although,  after  it  is  admitted,  its 
credibility  and  weight  are  questions  for  the  jury,  who  in  so  doing 
consider  all  the  circumstances  of  the  case,  including  of  course  those 
upon  which  the  judge  has  decided  that  the  evidence  was  admissible.'' 
Various  instances  of  the  application  of  this  principle  have  occurred. 
Thus,  it  has  been  held  that  it  is  a  question  for  the  court,  whether  a 
declaration  made  by  one  in  articulo  mortis  be  admissible  under  the 
circumstances  *of  the  case."  So,  where  the  question  was 
L  -■  upon  the  sufficiency  of  the  stamp  on  a  bill  of  exchange, 
which  depended  upon  the  further  question  whether  it  was  a  foreign 
bill,  which  it  purported  to  be,  or  an  inland  one,  as  the  defendant  as- 
serted, it  was  held  that  it  was  the  duty  of  the  judge  to  decide  this 
question.*^  Where  the  question  was  whether  a  witness  was  competent 
or  not  on  the  ground  of  sanity,  Parke,  B.,  after  taking  the  opinion 
of  the  judges,  tried  the  question  of  sanity,  and  admitted  the  witness.* 
The  judge  must  try  whether  a  person,  whose  declarations  on  a  ques- 
tion of  pedigree  are  tendered  in  evidence,  is  proved  to  have  been  a 
member  of  the  family.^  And  where  declarations  are  offered  in  evi- 
dence as  made  by  a  party  to  the  suit,  the  judge  should  determine  his 

y  Per  Tindal,  C.  J.,  Leiois  v.  Marshall,  7  M.  &  G.  (49  E.  C.  L.  R.)  743. 

^  Doe  dem.  Jenkins  v.  Davies,  10  Q.  B.  (59  E.  C.  L.  R.)  323. 

»  Per  Erie,  J.,  in  Doe  v.  Davies,  10  Q.  B  (59  E.  C.  L.  R.)  323  ;  Welsted  v.  Levy, 
1  M.  &  Rob.  138. 

"  Lewis  V.  Marshall,  7  M.  &  G.  (49  E.  C.  L.  R.)  743  ;  Phillips  v.  Cole,  10  A. 
&E.  (37  E.  0.  L.  R.)  112. 

0  So  held  by  all  the  judges :  see  li.  v.  Hiicks,  1  Stark.  C.  (2  E.  C.  L.  R.)  523  5 
Major  Campbell's  case,  quoted  by  Parke,  B.,  in  Bartlett  v.  Smith,  11  M.  &  W. 
486;  see  tit.  Admissions. 

"  liartlelt  v.  Smith,  11  M.  &  W.  483. 

«  Per  Parke,  B.,  in  Cleeve  v.  Jones,  21  L.  J.,  Ex.  106. 

'  Doe  V.  Davies,  10  Q.  B.  (59  E.  C.  L.  R.)  314. 


QUESTIONS    OF    LAW    AND     FACT.  789 

identity.^  So,  he  must  try  whether  a  particular  contract  is  of  such 
a  usual  character  as  to  let  in  evidence  of  a  custom  of  trade  to  con- 
trol its  terras.^  So,  he  must  inquire  into  and  decide  the  question, 
whether  the  attempts  to  find  an  attesting  witness  have  been  sufficient 
to  admit  proof  of  his  handwriting,' or  whether  proper  search  has  been 
made  for  a  document  to  let  in  secondary  evidence,''  or  whether  the 
custody  of  an  ancient  document  was  proper.'  So,  where  the  plaintiff 
had  been  the  attorney  of  the  defendant,  the  judge  decided  the  ques- 
tion whether  a  book  tendered  by  the  plaintiff  in  evidence  came  to 
him  as  a  privileged  communication  from  the  defendant.""  Whether 
different  portions  of  land  are  so  *connected  as  to  make  acts 
done  upon  one  of  them  evidence  of  rights  over  another,  and  ■-  -^ 
also  whether  such  acts  amount  to  evidence  of  ownership,"  are  like- 
wise questions  which  the  court  must  decide.  The  evidence  tendered 
upon  such  questions,  indeed,  is  not  in  any  way  for  the  jury  ;  the  tes- 
timony ought  to  be  given  upon  the  voire  dire :  and  if  amongst  the 
matters,  upon  which  the  question  whether  secondary  evidence  is  ad- 
missible or  not  depends,  there  be  a  letter,  the  judge  will  not  have  it 
read  before  the  jury,  but  will  read  it  himself,  and  hand  it  to  the  op- 
posite counsel." 

It  is  also  the  province  of  the  court  to  decide  all  matters  which  de- 
pend on  an  inspection  of  the  record.^ 

The  court  it  has  been  said  will,  ex  officio,  exclude  illegal  evidence, 
without  regard  to  the  compact  of  counsel. "^ 

s  Corjield  v.  Parsons,  1  C.  &  M.  730. 

•^  Lewis  V.  Marshall,  7  M.  &  G.  (49  E.  C.  L.  R.)  729  ;  and  see  supra,  p.  701. 

'  Supra,  p.  514. 

"  Supra,  p.  536. 

'  Bishop  Meath  v.  Marquis  of  Winchester,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  183; 
and  see  supra,  p.  536, 

™  Cleave  v.  Jones,  21  L.  J.,  Ex.  105. 

°  Doe  V.  Kemp,  7  Bing.  (20  E.  C.  L.  R.)  336. 

o  Smith  V.  Sleap,  1  C.  &  K.  (47  E.  C.  L.  R.)  48. 

P  R.  V.  Hucks,  1  Stark.  C.  (3  E.  C.  L.  R.)  455.  Note,  the  question  there  was, 
whether  a  word  in  a  record  was  meeting  or  mutiny. 

<!  Shaw  V.  Roberts,  2  Stark.  C.  (3  E.  C.  L.  R.)  522.  But  see  on  this  subject 
Barhat  v.  Allen,  21  L.  J.,  Ex.  155,  where  the  subject  underwent  considerable 
discussion,  and  it  would  seem  that  in  ordinary  cases,  if  no  objection  be  made, 
the  evidence  ought  to  be  received;  but  if  the  objection  be  once  made,  it  is 
purely  discretionary  with  the  judge  whether  he  will  allow  it  to  be  withdrawn. 
The  parties  cannot,  it  has  also  been  said,  by  private  stipulation  bind  a  court  of 
justice  not  to  call  for  that  proof  which  law  has  rendered  necessary.  They  can- 
not make  proof  of  the  policy  sufficient,  where  the  stat.  19  Geo.  II.,  c.  37,  pro- 

46 


790  PROOFS — DUTY    OF    THE    COURT. 

A  party  who  is  dissatisfied  with  the  decision  of  the  court  in  point 
of  law  may  either  tender  a  bill  of  exceptions,  or,  which  is  the  more 
modern  practice,  may  afterwards  move  for  a  new  trial. 

A  bill  of  exceptions  is  founded  upon  some  objection  to  the  direc- 
tion of  the  judge  at  nisi  prius,  or  the  court  upon  a  trial  at  bar'  to 
■- ,  «^.  -,  the  jury,  or  their  decision  as  to  *the  admissibility  of  evidence/ 
L     ^   -I    or  the  competency  of  witnesses,'  or  improperly  allowing  or 

hibits  the  recovery  witliout  further  proof  than  the  policy  :  Hodgson  v.  Glover, 
6  East  321.  Yet  it  is  difficult  to  say  that  a  party  in  a  civil  controversy,  who 
may  waive  the  proof  by  omitting  to  deny  an  allegation,  may  not  dispense  with 
proof  at  the  trial. 

'  Botce  V.  Benton,  3  M.  &  R.  (17  E.  C.  L.  R.)  2G6. 

^  Thurston  v.  Slatford,  Salk.  284.  If  the  contention  be  whether  the  facts 
proved,  tend  to  prove  the  issue,  the  party  objecting  ought  to  demur  to  the  evi- 
dence :  Bulkehj  v.  Biitler,  2  B.  &  C.  (9  E.  C.  L,  R.)  445. 

*  Bent  V.  Baker,  3  T.  R.  27.  For  improperly  directing  a  nonsuit:  Strother  v. 
Hutchinson,  4  Ring.  N.  C.  (33  E.  C.  L.  R.)  S3  ;  Corsar  v.  Reed,  21  L.  J.,  Q.  B. 
18  ;  post,  p.  807,  note  (x).  So,  if  the  judge  tell  the  jury  thatthere  is  evidence 
when  there  is  none  :  Bulkehj  v.  Butler,  2  B.  &  C.  (9  E.  C.  L.  R.)  445.  Where 
the  reception  of  evidence  depends  upon  some  fact  ivhich  is  disputed,  and  of 
which  the  Court  and  not  the  jury  is  the  proper  judge,  it  may  be  very  doubtful 
whether  the  decision  of  the  judge  can  afterwards  be  brought  in  question  by 
means  of  a  bill  of  exceptions  ;  for  this  would  be  to  constitute  the  Court  of  Error 
a  court  for  deciding,  not  upon  the  law,  but  upon  the  fact,  and  that,  too,  in  a  case 
which  might  depend  altogether  on  a  balancing  of  the  credit  due  to  conflicting 
testimony.  In  Bell  v.  The  Hull  and  Selby  Railumy  Co.,  6  M.  &  W.  699  (184U), 
one  of  the  questions  was,  whether  the  judge  at  nisi  prius  haii  properly  rejected 
a  witness  tendered  for  the  defendants  on  the  ground  of  interest,  the  witness 
having  stated  tliat  he  had  been  a  shareholder,  but  that  he  had  a  few  days  before 
assigned  his  shares  to  the  treasurer  of  the  Company  in  order  to  qualify  himself 
to  be  a  witness,  that  he  conceived  himself  to  have  transferred  his  interest,  and 
that  he  had  to  rely  only  on  the  honor  of  the  transferee  for  a  re-transfer,  but 
that  in  case  of  refusal  he  should  apply  to  a  Court  of  Equity  for  redress.  The 
judge  had  rejected  the  witness  on  the  ground  that  the  transaction  was  merely 
collusive.  For  the  plaintiff,  it  was  contended  [inter  alia)  that  the  question, 
whether  the  transaction  was  collusive  or  not,  was  one  of  fact  for  the  judge  at 
nisi  ])rius,  and  that  his  decision  could  not  be  questioned  in  ba)ic,  any  more 
than  if  the  question  had  been  raised  upon  a  bill  of  exceptions  tendered.  But 
the  Court  intimated  that  the  decision  of  the  judge  might  be  questioned  on  a 
motion  for  a  new  trial,  although  not  upon  a  bill  of  exceptions  tendered ;  and 
see  Wright  v.  Doe  dem.  Tutham,  7  Ad.  &  El.  (34  E.  C.  L.  R.)  356;  and  the  ob- 
servations, Ibid.,  of  Tindal,  C.  J.,  on  the  case  of  The  Bishop  of  Meath  v.  The 
Murtjuis  of  Winchester,  3  Ring.  N.  C.  (32  E.  C.  L.  R.)  183;  Doe  dem.  Norton 
V.  Wehsler,  J2  A.  &  E.  (40  E.  C.  L.  R.)  442.  On  a  bill  of  exceptions  the  ques- 
tion of  fact  always  goes  to  the  jury  :  Miller  y.  Warre,  1  C.  &  P.  (12  E.  C.  L.  R.) 
239. 


BILL    OF     EXCEPTIONS.  792 

refusinop  a  challenge  of  the  jury,"  or  refusino;  a  demurrer  to  evi-    ^^  „^^-. 

&  o  ,1     J  ■<  o  r*79'^l 

dence."    The  *stat.  13  EdAV.  I.  s.  31,  enacts  that  "when  one,^'    ^       -J 

that  is  impleaded^  before  any  of  the  justices,  doth  allege  an  exception, 

praying  that  the  justices  will  allow  it,  which  if  they  will  not  allow,  if 

he  that  hath  alleged  the  (juestion  do  write   the  same  exception,  and 

require  that  the  justices  will  put  their  seals  for  a  witness,  the  justices 

shall  do  so ;  and  if  one  will  not  another  of  the  company  shall  ;'^    and 

if  *the  king,  upon  complaint  made  of  the  justices,  cause  the 

record  to  come  before  him,  and  the  same  exception  be  not    L       "  -• 

found   in   the  roll,  and  the   party  show  the  exception  written,  wnth 

«  Strnfher  v.  Hutchinson,  4  Bin^.  N.  C.  (33  E.  C.  L.  R.)  83. 

^  Cort  V.  Bishop  of  St.  David's,  Cro.  Car.  341  ;  Gibson  v.  Hunter,  2  H.  Bl.  208  ; 
Strother  v.  Hutchinson,  4  Bing.  N.  C.  (33  E.  C.  L.  R.)  90. 

y  The  statute  extends  to  a  plaintiff  as  well  as  a  defendant :  2  Inst.  427. 

'  The  words  are,  si  aliquis  implacitetur ;  hence  it  has  been  said  that  does  not 
apply  in  a  criminal  case :  /Sir  H  Vane's  case,  1  Keb.  384  ;  1  Lev.  68  ;  E.  v. 
Broughton,  Str.  1229  ;  Lord  Grey's  case,  1  Vern.  Ch.  Cases  175.  It  does  not 
lie  on  an  indictment  for  treason  or  felony  :  2  Haw.  c.  46,  s.  210  ;  Sir  H.  Vane's 
case,  1  Keb.  324. 

But  it  has  been  allowed  on  an  indictment  for  trespass :  R.  v.  Lord  Paget,  1 
Leon.  5.  And  also  on  an  information  in  the  nature  of  a  quo  warranto  :  li.  v. 
Higgins,  1  Ventr.  366  ;  sic  R.  v.  Nutt,  1  Barn.  307.  It  does  not  lie  before  jus- 
tices on  the  trial  of  an  appeal :  R.  v.  Inhabitants  of  Preston,  2  Str.  1040.  Nor 
in  any  case  where  a  writ  of  error  does  not  lie  :  B.  N.  P.  316.  The  stat.  extends 
to  a  trial  at  bar,  as  well  as  to  one  at  nisi  priiis :  Thurston  v.  Slatford,  3  Salk 
155;  Davis  v.  Lowndes,  \  M.  &  G.  (39  E.  C.  L.  R.)  473  ;  contra,  R.  v.  Smith, 
2  Show.  287. 

Lord  Coke  says,  the  statute  extends  to  all  actions  real,  personal  and  mixed,  but 
makes  no  mention  of  criminal  cases.  Lord  Ilardwicke  considered  this  to  be  a 
point  not  then  settled  :  R.  v.  Inhabitants  of  Preston,  supra.  He  said,  a  bill  of 
exceptions  had  been  allowed  in  informations  in  the  Exchequer,  which  are  civil 
suits  for  the  King's  debt ;  but  that  it  had  never  been  determined  to  lie  in  mere 
criminal  proceedings,  Ibid. ;  and  see  R.  v.  Stratton  and  others,  Howell's  St.  Tr. 
vol.  21,  p.  1045.  It  has  been  held  that  it  does  not  lie  on  the  trial  of  a  feigned 
issue  out  of  Chancery  :  Bullen  v.  Michel,  2  Price  416,  Wood,  B.,  dissentiente ; 
Armstrong  v.  Leicis,  3  M.  &  K.  52 ;  or  a  feigned  issue  under  the  Tithe  Commu- 
tation Act :  Thorpe  v.  Ploivden,  2  Ex.  387.  Nor  does  it  lie  on  an  interpleader 
issue  :  King  v.  Simnionds,  7  Q.  B.  (53  E.  C.  L.  R.)  289;  Snook  v.  Mattock,  5 
Ad.  &  E.  (31  E.  C.  L.  R.)  239.  It  is  much  doubted  whether  it  lies  on  a  writ  of 
inquiry  :  Price  v.  Green,  16  M.  &  W.  346.  But  it  lies  on  the  direction  of  a 
sheriff  to  a  jury  in  the  county  court:  Strother  v.  Hutchinson,  4  Bing.  N.  C. 
(33  E.  C.  L.  R.)  83  ;  and  on  an  issue  out  of  the  Admiralty  Court :  3  &  4  Vict, 
c.  65,  s.  15. 

"  It  must  be  sealed  by  the  judge  who  tried  the  cause  :  Newton  v.  Boodle,  3 
C.  B.  (54  E.  C.  L.  R.)  795;  or  by  one  in  the  commission  ;  no  other  can  do 
so,  even  by  consent :  Nind  v.  Arthur,  C.  P.  1  Chitty's  Stats,  by  Welsby,  p. 
307. 


793  PROOFS — DUTY    OF    THE     COURT, 

the  seal  of  the  justice  affixed,  the  justice  shall  be  commanded  that 
he  appear  at  a  certain  daj  to  confess  or  deny  his  seal,  and  if 
the  justice  cannot  deny  his  seal,  judgment  shall  be  given  accord- 
ing to  the  exception,  as  it  may  be  allowed  or  disallowed."  If 
the  judge  admit  the  matter  to  be  evidence,  but  not  conclusive,  where 
in  point  of  law  it  is  conclusive,  the  course  is  to  demur  to  the 
evidence,''  because  (as  it  is  said),  although  the  evidence  be  conclusive, 
the  jury  might  formerly  hazard  an  attaint  if  they  pleased;"  as  where 
the  judge  leaves  it  to  the  jury  whether  the  probate  of  a  will  be  evi- 
dence to  prove  the  bequest  of  a  term  for  years. "^  The  statute  is 
silent  as  to  the  time  of  tendering  the  bill,  but  it  has  been  held,  on 
reason  and  principle,  that  it  must  be  done  at  the  trial,  for  the  party 
may  have  misled  his  adversary  by  not  insisting  on  the  objection  at 
the  time  ;®  if  he  stood  upon  his  exception  the  adversary  might  have 
had  more  evidence,  and  need  not  have  put  his  cause  upon  that  point. 
It  need  not,  however,  be  put  in  form  then,  although  the  substance  of 
it  *ought  to  be  put  into  writing,  since  it  is  to  become  a 
■-         -^    record.^ 

If  the  bill  be  annexed  to  the  record,  it  begins  with  the  proceed- 
ings after  issue  joined,  and  proceeds  to  state  the  circumstances  upon 
which  it  is  founded :  that  a  particular  witness  was  called  to  prove 
certain  facts,  or  evidence  offered  to  prove  such  facts,^  or  challenge 

**  See  Demurrer  to  Evidence,  infra,  p.  797. 

«  See  Tidd,  Pr.  863,  9th  edit. 

<»  Chichester  v.  Phillips,  T.  Kaym.  405  ;  T.  Jon.  146. 

•^  Wright  v.  Sharpe,  1  Salk.  288.  Where  the  exceptions  were  placed  upon  the 
record  after  the  finding  of  the  jury,  the  Court  of  Error  could  not  give  judgment 
thereon :  Armstrong  v.  Letvis,  2  C.  &  M.  275.  Where  they  erroneously  appeared 
to  have  been  taken  after  verdict,  the  Court  of  Error  amended  the  record  in  this 
respect:  Cully  v.  Taylerson,  11  A.  &  E.  (39  E.  C.  L.  R.)  1008  ;  and  a  party  is 
entitled  to  a  reasonable  time,  to  seal  his  bill  of  exceptions  and  sue  out  his  writ 
of  error;  therefore  where  the  plaintiif  had  signed  judgment  in  such  a  case,  the 
court  would  not  compel  the  defendant  to  enter  upon  the  record  that  the  bill  was 
sealed  after  judgment  signed :  B.  v.  Rowley,  2  D.  N.  S.  335. 

f  Per  Holt,  C.  J.,  1  Salk.  288  ;  Tidd,  Pr.  863,  9fch  edit. 

«  It  should  contain  so  much  of  the  evidence  as  is  necessary  to  make  the 
exceptions  intelligible  to  the  Court  of  Error,  and  to  furnish  grounds  for  the 
allowance  or  disallowance  of  the  exception  :  Davies  v.  Lowndes,  1  Scott  N.  R. 
328.  And  where  part  of  a  lease  was  inserted  amongst  the  evidence  by  way  of 
extract,  the  House  of  Lords  held  that  no  other  part  of  the  lease  could  be 
referred  to:  Galway  \.  Baker,  5  CI.  &  F.  157,  App.  Where  the  object  for 
which  evidence  is  offered,  but  rejected,  is  obvious,  and  must  have  been  under- 
stood by  the  judge  and  the  jury,  it  is  not  necessary  that  the  object  should  be 
Hpcciully  stated  :  Due  v.  Earl  of  Jersey,  3  li.  &  C.  (10  E.  C.  L.  R.)  870.     In  the 


BILL    OF    EXCEPTIONS.  795 

made,  or  demurrer  *tendered  ;  the  allegations  of  counsel  on  r-^r,q^-, 
the  admissibility  or  effect  of  evidence  ;  the  opinion  of  the  ^  -' 
court  or  judge,*"  and  the  exception  of  counsel  to  that  opinion,  and 
the  verdict  of  the  jury.'  Where  the  bill  is  not  annexed  to  the  record, 
it  is  necessary  to  set  out  the   whole  of  the  proceedings  previous  to 

case  of  BuUcely  and  others  v.  Butler,  in  error,  2  B.  &  C.  (9  E.  C.  L.  R.)  434, 
where  the  question  on  which  a  bill  of  exceptions  was  tendered  was,  whether 
there  was  sufiBcient  evidence  that  the  bill  on  which  the  action  was  brought  was 
endorsed  by  E.  S.,  the  payee,  the  record,  when  brought  into  the  Court  of  K.  B,, 
after  setting  out  the  pleadings  and  continuances,  stated  that  on  a  certain  day 
the  cause  came  on  to  be  tried  ;  that  one  W.  B.  was  produced  and  examined  as 
a  witness  for  the  plaintiff,  and  stated  that,  &c.  ;  on  cross-examination  he  stated 
that,  &c.  (see  the  evidence,  tit.  Bill  of  Exchange)  ;  and  then,  upon  no  other 
evidence  being  adduced  of  the  person  calling  himself  E.  S.  being  the  payee  of 
the  said  bill  in  the  declaration  mentioned,  the  counsel  for  the  defendant  objected 
to  the  evidence  so  given  as  aforesaid  by  the  said  plaintiff  in  support  of  the  said 
issue  joined  between  the  said  parties,  and  that  there  was  no  proof  to  go  to  the 
jury  of  the  identity  of  the  said  person  calling  himself  C  S.  with  the  said  E. 
S.,  the  payee  of  the  said  bill ;  and  then  and  there  prayed  the  said  Chief  Justice 
that  he  would  declare  to  the  jury  that  there  was  no  evidence  before  them  of 
the  endorsement  of  the  said  bill  of  exchange  by  the  payee  before  mentioned ; 
yet  the  said  Chief  Justice  did  then  and  there  declare  and  deliver  his  opinion 
to  the  jury  aforesaid,  that  although  in  law  there  should  be  some  proof  of  the 
identity  of  the  person  making  the  endorsement,  still  it  ought  not  to  be  so  rigidly 
followed  up  as  to  clog  the  negotiability  of  bills  of  exchange ;  and  the  said  Chief 
Justice  did  further  deliver  his  opinion,  that  the  said  evidence  above  set  forth 
was  reasonable  evidence  to  be  left  to  the  jury,  whether  the  said  endorsement 
was  the  endorsement,  &c. ;  and  thereupon,  with  that  direction,  left  the  same  to 
the  jury,  who  declared  themselves  to  be  satisfied  of  the  identity  of  the  said  E. 
S. ;  concluding  in  the  usual  form.  Ilolroyd,  J.,  in  giving  judgment,  observed, 
the  real  question  was,  "whether  this  evidence  was  or  was  not  admissible,  either 
as  containing  the  declarations  of  persons  not  called  as  witnesses,  or  as  having 
no  tendency  to  prove  the  matters  in  issue.  If  the  objection  was  known  a  priori^ 
it  should  have  been  made  before  the  evidence  was  given  ;  but  if  it  was  not  dis- 
covered till  afterwards,  then  the  judge  should  have  been  requested  to  strike  the 
evidence  out  of  his  notes  ;  and  if  after  that  he  persevered  in  summing  it  up  to 
the  jury,  that  would  have  been  a  good  ground  for  tendering  a  bill  of  exceptions  ; 
but  if,  as  appears  to  me  to  have  been  the  case,  the  contention  was  whether, 
admitting  the  facts  deposed  to,  they  tended  to  prove  the  issue,  there  should  have 
been  a  demurrer  to  the  evidence."     The  judgment  was  afiBrmed. 

''  It  is  not  enough  to  state  in  the  bill  that  the  judge  declined  to  direct  the 
jury  in  the  way  suggested,  without  showing  what  his  direction  actually  was: 
M'Alpine  v.  Mangnall,  3  C.  B.  (54  E.  C.  L.  R.)  496. 

'  Matters  preliminary  to  their  verdict,  and  which  they  were  not  bound  by  law 
to  find,  cannot  be  inti-oduced  together  with  the  verdict,  although  found  by  them 
together  therewith  :  Davies  v.  Lowndes,  1  M.  &  G.  (39  E.  C.  L.  R.)  473  ;  Tidd, 
Pr!  862,  9th  ed.;  Eickell  v.  Money,  B.  N.  P.  317;  Fabrigas  v.  Mostpi,  11  St.  Tr. 
187 ;  Money  v.  Leach,  3  Burr.  1692  and  1742. 


795  PROOFS — DUTY  OF  THE  COURT, 

the  trial."^  If  the  bill  be  sealed,  both  parties  are  bound  by  it,  and 
cannot  aver  the  contrary,  or  supply  an  omission  in  it.^ 

The  judge  either  sets  his  seal  to  the  exceptions,  or  refuses  to 
do  so  because  the  bill  contains  matters  which  are  not  true."*  On 
r*7Qn  ^<i/"^s^^j  t^6  party  may  have  a  writ  *founded  on  the  statute, 
containing  a  surmise  of  an  exception  taken  and  overruled 
and  commanding  the  justices,  that  if  it  be  so,  they  put  their  seals  to 
the  bill,"  If  they  return  quod  non  ita  est,  an  action  lies  for  a  false 
return,  in  which  the  surmise  may  be  tried ;  and  if  it  be  true,  the 
plaintiff  recovers  damages,  and  a  peremptory  writ  issues." 

The  bill  of  exceptions,  when  sealed,  is  not  used  until  judgment  has 
been  signed,  and  a  writ  of  error  brought  to  remove  the  proceeding 
into  the  court  above,P  for  the  proceeding  is  in  the  nature  of  an  ap- 
peal.*!  On  the  return  of  the  writ  of  error,  the  judge  being  called  on 
by  the  court,  either  confesses  or  denies  his  seal;  if  he  confess  it,  the 
proceedings  are  entered  of  record,  and  the  other  party  assigns  error; 
if  he  denies  his  seal,  the  plaintiff  may  take  issue  upon  it,  and  prove 
it  by  witnesses."^ 

The  court  will  not  grant  a  motion  for  a  new  trial  where  a  bill  of 
exceptions  has  been  tendered,  unless  the  bill  of  exceptions  be  aban- 
doned.^ It  seems  to  be  otherwise  where  the  new  trial  is  applied  for 
upon  another  point,  and  that  point  could  not  have  been  included  in 
the  bill  of  exceptions.'  And  a  bill  of  exceptions  is  waived  by  bring- 
ing a  writ  of  error  before  the  judge's  signature  has  been  obtained, 
and  the  party  will  then  be  precluded  from  appending  the  bill  to  the 
r*7Q'7-i  "^^i*  ^^  error."  "Where  the  *objection  is  to  the  reception  of 
evidence  as  inadmissible,  the  party  ought,  if  aware  of  the  ob- 

^  B.  N.  P.  317. 

1  Bridgman  v.  Holt,  Show.  Pari.  C.  120 ;  Lord  Trimlestown  v.  Kemmis,  9  CI. 
&  F.  749. 

°>  Bridgman  v.  Holt,  Show.  Pari.  C.  120. 

°  2  Inst.  427;  B.  N,  P,  316;  Lawlor  v,  Murrai/,  1  Sch.  &  Lef.  75;  llegistrum 
Brev,  182. 

0  2  Inst.  427  ;  Tidd,  Pr.  864,  9th  ed. 

P  Davenport  v.  Tyrrell,  1  Bl.  R.  679  ;  Symmers  v.  Begem,  Cowp.  501 ;  3  Bl.  Com, 
372 :  see  Enfield  v.  Hills,  2  Lev.  236. 

1  3  Bl.  Com.  372. 
>•  2  Inst.  428. 

»  Doe  d.  Roberts  v.  Roberts,  2  Chitty's  R.  272. 

♦  Crotty  V.  Rrice,  15  Q.  B.  (69  E.  C.  L.  R.)  1003  ;  Adams  v.  Andrews,  Ibid. 
1001. 

"  Dillon  V.  Parker,  1  Binf>;.  (8  E,  C,  L.  R.)  17.  But  where  a  bill  of  exceptions 
had  been  sent  to  the  plaintiff,  that  he  might  agree  to  it  or  suggest  alterations 


BILL    OF    EXCEPTIONS.  797 

jection,  to  object  to  its  reception ;  if  not  apprised  previously,  he 
ought,  after  it  has  been  received,  to  request  the  judge  to  strike  it  out 
of  his  notes,  and  if  the  judge  persist  in  retaining  it  and  stating  it  to 
the  jury,  the  proper  course  is  to  tender  a  bill  of  exceptions;  but  if 
the  contention  is,  whether  the  evidence,  being  admissible,  tends  to 
prove  the  issue,  the  proper  course  is  to  demur  to  the  evidence/ 

The  Court  of  Error  may  look  into  the  whole  of  the  matters  set 
out  on  record,  to  enable  them  to  pronounce  their  judgment '/  and 
if  they  see  that  there  was  a  misdirection  calculated  to  mislead  the 
jury  in  their  verdict,  they  have  no  discretion,  but  must  allow  the 
exception  and  direct  a  new  trial,  even  although  the  verdict  be 
right/ 

A  party  who  admits  the  facts  Avhich  the  adverse  evidence  tends  to 
prove,  but  desires  to  withdraw  the  application  of  the  law  of  those 
facts  from  the  jury,  and  to  submit  them  for  that  purpose  to  the  court 
above,  is  at  liberty  to  do  so  by  his  demurrer  to  the  evidence/  But 
his  demurrer  cannot  be  allowed,  unless  he  admit  upon  the  record  the 
truth  of  the  facts  which  the  evidence  of  his  adversary,  though  it  be 
but  presumptive  or  circumstantial,  tends  to  prove/  For  though  he 
has  a  right  to  submit  the  legal  *effect  of  the  facts  to  the  r^cYOQ-i 
judgment  of  the  court,  yet,  as  the  jury  are  the  proper  judges 
of  matters  of  fact,  the  evidence  must  either  be  submitted  to  the  jury, 
or  the  facts  themselves  which  the  evidence  conduces  to  prove  must  be 

before  being  signed  by  the  judge,  and  on  the  same  day  the  defendant  sued  out 
a  writ  of  error,  it  was  held,  that  notwithstanding  this  the  plaintiff  was 
bound  to  express  his  assent  or  dissent,  and  return  it :  Willans  v.  Taylor,  6  Bing. 
(19  E.  C.  L.  R.)  512  ;  and  the  bill  of  exceptions  not  having  been  ready 
when  the  writ  of  error  was  returned,  the  court,  under  the  circumstances,  or- 
dered it  to  be  tacked  to  the  record  :  Taylor  v.  Willans,  2  B.  &  Ad.  (22  E.  C.  L. 
R.)  846. 

^  Bulkely  v.  Butler,  2  B.  &  C.  (9  E.  C.  L.  R.)  434  ;  supra,  p.  794. 

y  Vines  v.  The  Corporation  of  Reading,  1  Y.  &  J.  4 ;  Smith  v.  Latham,  1  C- 
&  M.  568.  If  the  court  decided  in  favor  of  the  objection,  they  would  either 
award  a  venire  de  novo  or  reverse  the  judgment,  but  they  cannot  award  a  venire 
de  novo  to  an  inferior  court :  Strother  v.  Hutchinson,  4  Bing.  N.  C.  (33  E.  C.  L. 
R.)  83. 

"  Househill  Coal  Company  v.  Neilson,  9  CI.  &  F.  788.  This  otherwise  in  case 
of  a  motion  for  a  new  trial :  Ibid. 

*  This  proceeding  is  nearly  obsolete,  no  instance  of  it  having  occurred  in  prac- 
tice for  many  years. 

''  Gibson  v.  Hunter,  2  H.  B.  187  ;  Wright  v.  Pindar,  Alleyn  18  ;  Cocksedge  v. 
Fanshaw,  Doug.  119. 


798  PROOFS — DUTY  OF  THE  COURT. 

admitted."  The  judge,  it  seems,  maj  overrule  the  demurrer  if  he 
think  proper,  and  leave  the  case  to  the  jury."^ 

And  if  in  the  case  of  an  information  or  any  other  suit,  where  the 
King  is  a  party,  evidence  be  given  for  the  King,  it  is  said  that  the 
King's  counsel  cannot  be  compelled  to  join  in  a  demurrer  to  the  evi- 
dence, but  that  in  such  a  case,  the  court  ought  to  direct  the  jury  to 
find  the  special  matter.* 

Where  the  demurrer  is  allowed,  the  usual  course  is  for  the  court  to 
give  order  to  the  associate  to  take  a  note  of  the  evidence,  which  is 
signed  by  counsel,  and  affixed  to  the  posteaJ  But  if  the  court  over- 
ruled the  demurrer  improperly,  the  party  may  tender  a  bill  of  ex- 
ceptions.^ 

A  demurrer  to  evidence  lies  in  an  inferior  court. *" 

The  ancient  practice  of  tendering  bills  of  exceptions,  or  demurring 
to  the  evidence,'  has  in  a  great  measure  been  superseded  by  the  more 

^  „^^^    modern''  practice  of  moving  *the  court  for  a  new  trial ;  in 

r*7991  •  •  .  ■  . 

•-  -'  the  granting  or  refusing  of  which  the  courts  exercise  a  dis- 
cretionary power  according  to  the  exigency  of  the  case,  upon  princi- 
ples of  substantial  justice  and  equity.^ 

"  Ibid.  ;  and  see  Baker'' s  case,  5. Co.  103  ;  B.  N.  P.  314.  But  on  a  demurrer 
to  evidence,  the  court  may  draw  the  same  inference  as  a  jury  would  have  drawn  : 
Tatlock  V.  Harris,  3  T.  R.  174;  Vere  v.  Lewis,  3  T.  R.  182.  No  objection  can 
be  taken  to  the  pleadings  :   Cort  v.  Birkbeck,  Doug.  218. 

^  Worsley  v.  FiUsker,  2  Roll.  R.  119. 

«  Baker's  case,  5  Co.  104 ;  B.  N.  P.  313. 

*■  B.  N.  P.  313.  The  damages  may  be  assessed  conditionally;  or,  if  neces- 
sary, a  writ  of  inquiry  may  be  executed  after  the  court  has  given  judgment: 

B.  N.  P.  314 ;  Herbert  v.  Walters,  1  Ld.  Raym.  60 ;  Newys  v,  Larke,  Plowd. 
408 ;  Darrose  v.  Neicbott,  Cro.  Car.  143  ;  and  Miller  v.  Warre,  1  C.  &  P.  (12  E. 

C.  L.  R.)  329. 

8  Gibson  V.  Hunter,  2  11.  B.  208,  supra,  p.  797. 

^  As  in  the  Palace  Court:  Fitzliarris  v.  Boiun,  1  Lev.  87. 

'  Formerly  the  party  had  a  remedy  against  the  jury  by  writ  of  attaint,  but 
this  is  now  abolished. 

■^  See  the  observations  of  Lord  Mansfield  in  the  case  of  Bricjht  v.  Eynon,  1 
Burr.  390,  where  he  observed  that  a  verdict  can  only  be  set  right  by  a  new 
trial,  which  is  no  more  than  having  the  cause  more  deliberately  considered  by 
another  jury,  when  there  is  a  reasonable  doubt,  or  rather  a  certainty,  that 
justice  has  not  been  done;  and  see  the  judgment  of  Wood,  B.,  in  Stevens  v. 
Aldridge,  5  Price  352. 

'  The  rules  by  which  the  courts  will  be  guided  in  granting  new  trials  have 
become  much  more  perfectly  defined  in  modern  times.  In  Hughes  v.  Hughes, 
15  M.  it  AV.  701,  Alderwon,  B.,  said,  that  the  court  now  regulates  its  discretion, 
as  nearly  as  possible,  by  the  rules  ap[)licablc  to  bills  of  exceptions. 


NEW    TRIAL.  799 

The  two  principal  grounds  for  this  motion,  with  reference  to  the 
present  subject,  are, 

1st.  Some  misdirection  or  misruling  on  the  part  of  the  judge ;   or, 

2dly.  Error  or  misconduct  on  the  part  of  the  jury. 

First,  a  new  trial  will  be  granted  where  the  judge  has  misdirected 
the  jury  upon  a  matter  of  law  ;  as  where  he  states  to  the  jury  that 
the  evidence  does  not  prove  an  alleged  custom,  when  the  testimony 
of  the  witnesses,  if  believed,  does  prove  the  custom.™ 

*So,  if  the  judge  reject  evidence  which  ought  to  have  been 
admitted,  or  admit  that  which  ought  to  have  been  rejected."^    L         J 

Formerly,  the  courts  would  not  grant  a  new  trial  on  the  ground 
of  the  reception  of  improper  evidence,  where  there  was  sufficient 
evidence  without  it  to  warrant  the  verdict."      But  it  has  since  been 

•"  How  V.  Strode,  2  Wils.  269  ;  2  Salk.  649.  So,  if  that  be  left  to  the  jury,  as 
an  award  by  commissioners  having  jurisdiction,  which  is  in  fact  evidence 
founded  on  the  conduct  or  deni'ianor  of  the  parties,  and  not  an  award  or 
adjudication,  the  court  will  grant  a  new  trial :  Jarrett  v.  Leonard,  2  M.  &  S. 
265.  The  court  granted  a  new  trial  in  a  toll  cause,  where  the  judge  had  mis- 
directed the  jury  as  to  the  meaning  of  the  term  constietudines,  in  an  ancient 
charter:  Earl  of  Egremo?itv.  Saul,  6  Ad.  &  Ell.  (33  E.  C.  L.  R.)  924;  and  see 
Elliott  V.  The  South  Devon  Railway  Co.,  2  Ex.  725.  But  it  must  be  a  mis- 
direction as  to  some  matter  of  law  on  which  they  ought  to  act,  therefore  the 
court  refused  to  grant  a  new  trial  on  the  ground  of  misdirection  by  an  under- 
sheriff  in  telling  the  jury,  on  a  writ  of  inquiry  in  an  action  of  slander,  that 
any  amount  of  damages  would  entitle  the  plaintiff  to  full  costs:  Grater  v.  Col- 
lard,  6  Dowl.  P.  C.  503.  So,  they  have  refused,  where  the  judge  erroneously 
directed  the  jury  that  a  fact  need  not  be  proved,  which  was  by  oversight  sup- 
posed not  to  have  been  proved,  but  which  in  fact  was  proved  by  a  document 
conclusive  on  the  point,  and  admitted  without  objection:  Bessy  v.  Windham,  6 
Q.  B.  (51  E.  C.  L.  R.)  166  ;  and  see  Doe  v.  Penry,  1  Anst.  266. 

°  Thomldns  v.  Hill,  7  Mod.  64.  If,  therefore,  they  said  justice  had  been 
done,  although  there  had  been  a  misdirection  in  point  of  law,  they  would  not 
set  the  verdict  aside,  nor  discuss  the  legal  question :  Edmondson  v.  Machell,  2 
T.  R.  4.  Nor  will  they  now  interfere  where  the  whole  case  has  been  substan- 
tially left  to  the  jury,  although  a  point  made  at  the  trial,  which  could  have 
been  of  no  avail,  has  been  omitted :  Robinson  v.  Gleadow,  2  Bing.  N.  C.  (29  E. 
C.  L.  R.)  156.  Nor  can  particular  expressions  be  objected  to,  if  the  whole  in 
substance  lead  to  a  just  conclusion  :   Gascoyne  v.  Smith,  M'Cle.  &  Yo.  338. 

°  Nathan  v.  Buckland,  2  Moore  (4  E.  C.  L.  R.)  153 ;  Horford  v.  IVilson,  1 
Taunt.  12.  Even,  as  it  seems,  in  a  criminal  case :  R.  v.  Ball,  Russ.  &  Ry.  C. 
C.  R.  132;  Tinkler's  case.  Ibid.;  1  East  P.  C.  354;  R.  v.  Treble,  Russ.  &  Ry.  C. 
C.  R.  166.  Where  the  court  saw  that  there  was  evidence  not  merely  enough  to 
warrant  the  finding  of  the  jury,  independently  of  that  which  was  objected  to 
as  having  been  improperly  received,  but  that  it  greatly  preponderated  in  favor 
of  the  verdict,  the  court  refused  a  new  trial :  Doe  d.  Teynham  v.  Tyler,  6  Bing. 
(19  E.  C.  L.R.)  561. 


800  PROOFS — DUTY    OF    THE    COURT. 

determined,  and  seems  now  to  be  settled,  that  where  evidence  at 
the  trial  is  improperly  received,  and  its  reception  formally  objected 
to,  the  adverse  party  has  a  right  to  a  new  trial  ;p  unless  the  court 
sees  clearly  that  the  improper  evidence  could  not  have  weighed 
with  the  jury,  or  that  a  verdict,  if  given  against  the  party  who  gave 
the  evidence,  would  have  been  set  aside  as  against  evidence.  If,  too, 
evidence  tendered  has  been  improperly  rejected,  a  new  trial  will  be 
granted,  unless,  even  had  it  been  admitted,  a  verdict  for  the  party 
tendering  it  would  have  been  so  clearly  against  the  weight  of  evi- 
dence, that  in  like  manner  it  would  have  been  set  aside  by  the  court.'^ 
r*8nn  *But  a  new  trial  was  refused  to  be  granted  on  account  of 
the  rejection  of  a  witness  as  incompetent,  who  was  really 
competent,  where  the  fact  which  he  was  called  to  prove  was  estab- 
lished by  another  witness,  and  was  not  disputed,  and  the  verdict  was 
given  on  a  collateral  point,  on  which  the  defence  was  rested/  A 
new  trial  would  also  be  refused,  although  evidence  were  rejected  of 
a  fact,  if  it  was  proved  by  other  evidence,  and  admitted  by  the 
opponent/ 

On  the  ground  of  misdirection  the  court  will  grant  a  new  trial, 
even  in  a  penal  action  after  a  verdict  for  the  defendant,'  or  although 
the  sum  recovered  should  be  less  than  £20. 

If  the  plaintiflF's  counsel,  however,  at  the  trial  acquiesces  in  the 
ruling  of  the  judge,  and  in  consequence  the  defendant  takes  a  ver- 
dict without  entering  into   his  case,   the  plaintiff  cannot  afterwards 

P  Be  Rutzen  v.  Farr,  4  Ad.  &  Ell.  (31  E.  C.  L.  R.)  53  ;  Wright  v.  Tatham,  7 
Ad.  &  Ell.  (34  E.  C.  L.  R.)  330. 

•J  Crease  v.  Barrett,  1  C,  M.  &  R.  919.  This  decision  was  recognised  in  Doe 
dem.  Welsh  v.  Langjield,  16  M,  &  W.  497,  where,  because  the  evidence  wrongly 
rejected  would  not  have  advanced  the  case  of  the  party  applying,  other  and 
stronger  evidence  of  the  same  fact  having  been  received  which  rendered  that 
rejected  immaterial,  a  new  trial  was  refused ;  and  see  De  Rutzen  v.  Farr,  and 
Wright  v.  Tatham,  supra,  p.  800. 

■■  Edwards  v.  Evans,  3  East  451.  If,  too,  in  any  of  these  cases,  whether  of 
misdirection,  or  improper  reception  or  rejection  of  evidence,  the  party  showing 
cause  will  concede  the  particular  matter  or  question  to  which  the  direction  or 
evidence  applies,  the  other  party  is  not  entitled  to  a  new  trial :  Moore  v.  Tuck- 
well,  1  C.  B.  (50  E.  C.  L.  R.)  607.  Thus,  where  there  were  several  issues,  one 
of  them  on  a  plea  of  liherum  tenemcntum,  and  the  judge  improperly  rejected 
evidence  applicable  to  that  issue  only,  the  court,  after  a  verdict  for  the  defend- 
ant on  several  other  issues,  discharged  a  rule  for  a  new  trial  without  costs  to 
either  party,  on  his  consenting  to  a  verdict  for  the  plaintiff  on  that  issue  : 
Hughes  v.  Hughes,  15  M.  &  W.  701. 

°  Mortimer  v.  APCallun,  6  M.  &  W.  58  ;  supra,  note  [q). 

'  Wilson  v.  Rastall,  4  T.  R.  753 ;   Calcraft  v.  Gibbs,  5  T.  R.  19. 


NEW     TRIAL.  801 

move  for  a  new  trial  on  the  ground  of  misdirection."  And  it  rarely 
happens  that  the  court  will  grant  a  new  trial  upon  a  point  of  law 
Avhich  has  not  *been  taken  at  the  trial ;''  and  in  no  case  p-^Q^o-i 
where  the  objection,  if  taken,  might  have  been  removed  by  *-  -* 
evidence.^  The  court  has  refused  to  grant  a  new  trial,  to  let  the 
party  into  a  defence  of  which  he  was  apprised  at  the  trial  ;^  as  to 
give  tlie  defendant  an  opportunity  of  proving  by  way  of  defence  the 
illegality  of  a  policy  of  insurance.^"  But  where  the  defendant  in  an 
action  on  a  policy  failed  to  prove  a  breach  of  the  Convoy  Act, 
through  the  mistake  of  a  witness  who  had  failed  in  producing  the 
necessary  document  from  the  Admiralty,  the  court  granted  a  new 
trial  after  a  verdict  for  the  plaintiff  on  the  merits.*^ 

Secondly,  a  new  trial  will  be  granted  for  error  or  misconduct  of 
the  jury."  The  courts,  however,  do  not  interfere  *for  the  p^Q^q-i 
purpose  of  granting  new  trials,  but  in  order  to  remedy  some 

"  Robinson  v.  Cook,  6  Taunt.  (1  E.  C.  L.  R.)  336  ;  and  see  Morrishv.  Murrerj, 
13  M.  &  W.  52. 

""  Ritchie  V.  Bousjield,  7  Taunt.  (2  E.  C.  L.  R.)  309.  As  that  the  evidence  was 
not  applicable  to  the  particular  thing  it  was  tendered  to  prove,  but  to  something 
else  :  Ferrand  v.  Milligan,  7  Q.  B.  (53  E.  C.  L.  R.)  730.  Where  no  objection 
was  made  to  the  admissibility  of  evidence  until  the  judge  commenced  summing 
up,  the  court  afterwards  refused  a  new  trial  on  that  ground :  Abbott  v.  Parsons, 
7  Ring.  (20  E.  C.  L.  R.)  563;  and  see  Coxy.  Kitchen,  1  B.  &  P.  338,  where  the 
court  refused  to  set  aside  a  verdict  on  a  point  of  law  not  taken  at  the  trial, 
where  the  justice  and  conscience  of  the  case  were  with  the  verdict.  If  the 
judge's  note  does  not  show  that  the  point  was  taken  at  the  trial,  the  court 
will  not  allow  it  to  be  raised  before  them  :  Doe  v.  Benjamin,  9  Ad.  &  E. 
(36  E.  C.  L.  R.)  649;  therefore  counsel  ought  to  make  a  formal  tender  of  the 
evidence,  and  request  the  judge  to  take  a  note  of  it:  Gibbs  v.  Pike,  9  M.  &  W. 
351. 

y  Malkin  v.  Vickerstaff,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  89. 

^  Vei-non  v.  Hankey,  2  T.  R.  113.  But  where,  after  a  witness  had  been  a  short 
time  under  examination,  the  judge  expressed  an  opinion  that  the  action  could 
not  be  supported,  and  the  plaintiff  was  nonsuited,  a  new  trial  was  granted  on 
the  aflBdavit  of  the  witness,  to  the  effect  that  if  not  stopped  he  could  have  proved 
the  plaintiff's  case  :  Edger  v.  Knapp,  5  M.  &  G.  (44  E.  C.  L.  R.)  753. 

»  Gist  v.  Mason,  1  T.  R.  84. 

»  D'Aguilar  v.  Tobin,  2  Marsh.  (4  E.  C.  L.  R.)  265. 

"  As  if  the  jury  misapprehended  the  law  :  Gregory  v.  Tuffs,  1  C,  M.  &  R.  310. 
So  where  the  verdict  is  in  contravention  of  the  law,  from  a  desire  in  the  jury  to 
take  the  exposition  of  the  law  into  their  own  hands  :  Attorney- General  v.  Rogers, 
11  M.  &  W.  670.  So  in  an  action  on  a  policy  of  insurance  against  fire,  one  of 
the  conditions  was  a  forfeiture  of  all  benefit  in  case  of  fraud  or  false  swearing 
as  to  the  amount  of  loss  claimed  ;  the  plaintiff  claimed,  and  made  an  aflBdavit  of 
damage  to  the  extent  of  1085Z.,  and  having  sued  for  the  amount,  the  jury,  upon 


805  PROOFS — DUTY    OF    THE    COURT. 

It  is  a  general  rule  that  affidavits  cannot  be  received  from  jurors 
to  show  on  what  grounds  they  acted.**  And  although  affidavits 
may  be  admissible  when  made  by  jurors  as  to  what  is  done  openly 
in  court/  yet  it  was  observed  by  the  court,  that  the  information  had 
better  be  derived  from  some  other  source  ;**  and  the  judge's  notes  on 
r*8nR1  ^^^^^  point  is  conclusive.''  *The  delivery  of  food  to  a  retired 
^  jury,  without  showing   that  it   was   done  by  a  party  to  the 

cause,  or  that  the  refreshment  had  the  effect  of  carrying  the  verdict, 
is  not  a  sufficient  ground  for  setting  aside  the  verdict.^ 

The  doctrine  of  nonsuits  is  founded  on  the  ancient  practice,  accord- 
ing to  which  the  plaintiff  was  bound  by  himself  or  his  attorney'  to 
appear  at  the.  trial,  prosecute  his  suit,  and  hear  the  verdict ;  and  in 
case,  after  being  called,  he  made  default,  he  was  decreed  to  have 
abandoned  his  suit,  and  was  nonsuitedy^ 

This  ancient  practice  has  long  been  used  as  the  medium  by  which 

»  Burgess  v.  Langley,  1  D.  &  L.  21,  C.  P. ;  Harvey  v.  Hewitt,  8  Dowl.  598. 
Where  the  judge,  being  of  opinion  that  the  plaintiff  had  made  out  no  title, 
directed  a  verdict  for  the  defendant;  and  the  jury  being  present,  and  no  objec- 
tion made  at  the  time  of  entering  the  verdict,  the  Court  refused  an  application 
for  a  new  trial  on  the  affidavit  of  a  juror  that  he  had  not  concurred  in  the  ver- 
dict: Saville  v.  Lord  Farnliam,  2  M.  &  Ry.  216  ;  and  see  Everett  v.  Youells,  4 
B.  &  Ad.  (24  E.  C.  L.  R.)  681. 

p  Roberts  v.  Hughes,  7  M.  &  W.  399. 

1  Everett  v.  Youells,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  681.  Upon  the  trial  of  an  in- 
formation for  a  seditious  libel,  the  jury,  after  having  retired,  upon  their  return 
into  court  in  order  to  deliver  their  verdict,  it  was  uncertain  whether  all  of  them 
were  within  hearing  of  what  was  declared  by  their  foreman  ;  the  court  held,  that 
the  judge  properly  refused  to  interfere  after  the  verdict  was  recorded,  or  to  act 
upon  a  communication  fi-om  any  of  them  ;  but  under  such  uncertainty,  the  court 
would  allow  the  defendant  a  new  trial,  if  he  were  disposed  to  apply  for  it :  R.  v. 
Wooler,  6  M.  &  S.  366. 

'  Ibid. ;  R.  V.  Grant,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  1081 ;  Van  Nyvel  v.  Hunter, 
3  A.  &  E.  (30  E.  C.  L.  R.)  243  ;  Serjeant  v.  Chafy,  5  A.  &  E.  (31  E.  C.  L.  R.) 
354.  But  although  a  record  may  be  amended  by  the  note  of  the  judge,  it  can- 
not be  amended  by  his  recollection:  R.  v.  Virrier,  12  A.  &  E.  (40  E.  C.  L.  R.) 
317. 

»  Everett  v.  Youells,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  681  •,  see  Morris  v.  Vivian,  10 
M.  &W.  137. 

'  lie  may  therefore  be  nonsuited  at  any  time  before  the  verdict :  '<)  Bl.  Com. 
376. 

"See  Co.  Litt.  139.  He  maybe  nonsuited  also  on  a  demurrer:  Co.  Litt. 
139,  h.  Where  notice  of  trial  has  been  countermanded  after  the  commission 
day,  but  the  record  is  not  withdrawn,  the  proper  course  is  to  nonsuit  the 
phiintif}",  and  the  defendant  cannot  move  for  the  costs  of  the  assizes,  or  take  a 
verdict  for  the  defendant :  Haworth  v.  Whalley,  1  Car.  &  K.  (41  E.  C.  L.  R.) 
586. 


NONSUIT.  806 

the  court  intimates  an  opinion  that  the  plaintiff  has  not  made  out  a 
sufficient  case  for  the  consideration  of  the  jury.  The  phiintiff  is  there- 
fore formally  called,  although  by  himself  or  his  counsel  he  has  actu- 
ally appeared  in  court.  In  conformity,  however,  with  the  old  practice, 
being  called,  he  may  if  he  choose  appear,  and  if  he  do,  the  case  must 
go  to  the  jury.''  On  the  other  hand,  the  *plaintiff  may  of  his  r*oA7-| 
own  accord  and  for  his  own  convenience eZ^^c^  to  be  nonsuited 
at  any  time  before  the  jury  have  delivered  their  verdict,^  and  in  that 
case,  he  cannot  afterwards  be  heard  upon  an  application  to  set  aside 
the  nonsuit.^ 

Where  an  objection  is  taken  in  the  nature  of  a  demurrer  to  the 
plaintiff's  eviden  ce,  that,  even  admitting  it  to  be  true,  it  is  insufficient 
in  point  of  law,  if  the  judges  accede  to  the  objection  the  usual  course 
is  to 
be  of 


____-.,-_-    -^_. -jj---  _    _       _   -^  —  —  — „„  — „ 

nonsuit"'  the  *plaintiff.     But  in  such  case,  if  the  objection    r^nr^o-i 
f  a  doubtful  nature,  it  is  usual   for  the  judge,  either  to 


^  Watkins  v.  Towers,  2  T.  R.  281  ;  Dewar  v.  Purday,  3  Ad.  &  E.  (30  E.  C.  L. 
R.)  166  ;  Standijfe  v.  Clarke,  21  L.  J.,  Ex.  129.  The  proper  course  is  for  the 
plaintiff  to  appear  and  require  the  jud<fe  to  direct  the  jury  in  point  of  law  in  his 
favor,  and  if  the  judge  refuse  to  permit  him  to  appear,  and  nonsuit  him  a'^ainst 
his  will,  or  refuse  to  direct  the  jury  in  his  favor,  the  plaintiff  may  tender  a  bill 
of  exceptions  and  bring  a  writ  of  error  :  Corsar  v.  Reed,  21  L.  J.,  Q.  B.  18.  The 
plaintiS''s  consent,  ex^jress  or  implied,  must  always  be  had  :  3  A.  &  E.  (30  E.  C.  ■ 
L.  R.)  !&'(>,  supra.  As  the  plaintiff  cannot  be  nonsuited  without  consent,  he  may 
refuse  to  do  so,  unless  the  defendant  will  consent  to  terms,  e.  g.,  that  the  court 
above  shall  have  the  same  power  as  to  amending  a  variance  that  the  Court  of 
Nisi  Prius  had. 

y  Anderson  v.  Shaw,  3  Ring.  (11  E.  C.  L.  R.)  391  ;  Robinson  v.  Laivrence,  21 
L.  J.,  Ex.  36  ;   Outhwaite  v.  Hudson,  Ibid.  151. 

^  Simpson  V.  Clayton,  2  Ring.  N.  C.  (29  E,  C.  L.  R.)  467.  So,  if  the  plaintiff's 
counsel  elect  to  be  nonsuited  on  an  intimation  from  the  court  that  he  is  entitled 
to  nominal  damages  only  :  Butler  v.  Dorant,  3  Taunt.  229 ;  Hancock  v.  Podmore 
1  B.  &  Ad.  (20  E.  (J.  L.  R.)  265.  Or  if  he  do  so  on  the  judge's  proposing  to  leave 
two  questions  to  the  jury,  one  of  which  is  material,  and  of  which  there  is  prima 
facie  evidence  :   K.  B.  Trin.  T.  1830. 

*  Where  two  issues  were  found  for  the  plaintiff  and  two  for  the  defendant, 
with  liberty  reserved  to  the  latter  to  move  for  a  nonsuit,  if  the  court  should  think 
the  issues  found  for  the  plaintiff  immaterial,  which  was  acquiesced  in  at  the  trial 
by  the  plaintiff's  counsel  ;  held,  that  a  nonsuit  might  be  entered,  notwithstand- 
ing the  finding  of  some  of  the  issues  for  the  defendant :  Skepherd  v.  Bishop  of 
Chester,  6  Bing.  (19  E.  C.  L.  R.)  437. 

A  plaintiff  may  be  nonsuited  in  an  undefended  action  :  Halhead  v.  Abrahams, 
3  Taunt.  81  ;  and  after  payment  of  money  into  court:  Gutteridge  v.  Smith,  2  II. 
B.  374  ;  or  after  a  plea  of  tender  :  Anderson  v.  Shaiv,  3  Bing.  290.  In  replevin, 
although  the  cause  is  tried  on  the  defendant's  record :  Mann  v.  Lovejoy,  R.  &  M. 
(21  E.  C.  L.  R.)  357.     So  on  trial  by  proviso:  Anderson  v.  Shaw,  3  Bing.  (li 


808  PROOFS — DUTY  OF  THE  COURT. 

nonsuit  the  plaintiff,  with  leave  to  move  to  set  aside  the  nonsuit  and 
enter  a  verdict  for  the  plaintiff  for  a  sum  agreed  on  or  ascertained 
by  the  jury,  or  to  permit  the  plaintiff  to  take  a  verdict,  with  liberty 
to  the  defendant  to  move  to  enter  a  nonsuit.  This  seems  to  be  dis- 
cretionary on  the  part  of  the  judge,  who  usually  decides  according 
to  the  weight  of  his  own  opinion  for  or  against  the  objection. 

A  plaintiff  after  a  nonsuit  may  move  without  any  leave  reserved 
to  set  aside  the  nonsuit ;  but  in  that  case,  although  the  nonsuit  was 
improper,  the  court  will  do  no  more  than  set  aside  the  nonsuit.'' 
Upon  such  motion  made  without  leave,  if  the  nonsuit  be  not  tena- 
ble on  the  objection  urged  at  the  trial,  the  court  will  not  support  it 
on  another  ground  which  was  not  urged,  unless  the  objection  be  of 
such  a  nature  as  to  be  incapable  of  removal."  But  a  defendant  can- 
not move  to  enter  a  nonsuit  without  leave;  and  even,  with  leave, 
he  will  be  confined  to  the  objections  founded  upon  defects  in  evi- 
dence taken  at  the  trial ;  for  had  the  further  objection  been  then 
taken,  the  plaintiff  might  possibly  have  answered  it  by  adducing 
further  evidence.'^  Where  the  nonsuit  is  in  invitum,  the  plaintiff 
may  without  leave  move  to  set  it  aside,  although  he  make  no  request 
at  the  trial  that  the  case  may  be  left  to  a  jury,*  and  submit  merely 
out  of  deference  to  the  judge.  The  plaintiff,  with  leave  reserved  at 
the  trial,  may  move  to  have  a  nonsuit  set  aside,  and  a  verdict  en- 
r^HOQT  ^^^^'^  ^^^  ^™'  *Such  a  reservation  being  made  in  open 
court,  the  tacit  consent  of  the  jury  and  defendant  is  to  be 
implied.^  Leave  is  sometimes  given  to  a  defendant  to  move  to  set 
aside  a  verdict  and  enter  a  nonsuit.  But  this  cannot  be  done  without 
the  plaintiff's  consent;   and,  as   the  condition  of  such  consent  is  that 

E.  C.  L.  R.)  290.  So  where  there  are  issues  in  law  and  fact,  and  the  defendant 
has  obtained  judgment  on  the  former  :  Paxton  v.  Popham,  10  East  365.  He  can- 
not, it  has  been  suggested,  be  nonsuited  in  an  action  where  the  issue  is  on  the 
defendant :  Newhall  v.  Holt,  6  M.  &  W.  662.  Yet  if  he  does  not  appear  he  cer- 
tainly may :  Symes  v.  Larbij,  2  C.  &  P.  (12  E.  C.  L.  R.)  358. 

*>  Doe  d.  Latvrence  v.  Shawcross,  K.  B.  Hil.  1825.  And  unless  the  defendant 
at  the  trial  has  consented  to  leave  being  reserved  for  the  plaintiff  to  move  to 
enter  a  verdict,  the  Court  can  only  grant  a  new  trial. 

■=  Ibid. 

^  Driver  v.  Thompson,  4  Taunt.  294. 

*  Alexander  v.  Barker,  2  C  &  J.  136 ;  Ward  v.  Mason,  9  Price  291  ;  Garrow, 
B.,  dissenfiente.  But  he  cannot  urge  a  ground  of  objection  which  he  did  not 
urge  at  the  trial :    Waller  v.  Drakeford,  1  Stark.  C.  (2  E.  C.  L,  R.)  482. 

'  He  should  apply  to  the  judge  to  reserve  to  the  Court  the  powers  of  amend- 
ment which  he  has  under  3  &  4  Will.  IV.,  c.  42,  s.  23,  which  a  like  implied 
consent  will  enable  him  to  do. 


NONSUIT.  809 

the  case  shall  go  to  the  jury,^  the  defendant  ■will  not  be  entitled  to 
have  a  nonsuit  entered,  unless  the  jury  give  a  verdict. 

The  defendant  cannot  insist  on  a  nonsuit  after  he  has  addressed 
the  jury  and  examined  witnesses.''  It  has,  as  before  mentioned, 
been  held  that  a  bill  of  exceptions  lies  if  the  judge  improperly 
nonsuit.' 

After  an  untenable  verdict  for  the  plaintiff,  no  liberty  to  enter  a 
nonsuit  having  been  reserved,  the  court  can  only  grant  a  new  trial, 
for  otherwise  the  defendant  would  be  deprived  of  his  right  to  tender 
a  bill  of  exceptions.'' 

Where  the  terms  of  a  declaration  are  ambiguous,  and  taken  in 
one  sense  will,  but  taken  in  another  sense  will  not,  support  the  ver- 
dict, and  there  is  no  evidence  to  support  the  allegation  in  the  former 
sense,  the  proper  course*  is  (on  leave  given)  to  move  to  enter  a  non- 
suit.' *A  plaintiff  in  assumpsit  may  be  nonsuited,  although  r^o-in-i 
a  co-defendant  has  let  judgment  go  by  default. "^ 

A  verdict  set  aside  in  part,  must  be  set  aside  for  the  whole." 

The  practice  of  advising  the  jury  as  to  the  nature,  bearing,  ten- 
dency and  weight  of  the  evidence,  although  it  be  a  duty  which 
from  its  very  nature  must  be,  in  a  great  measure,  discretionary  on 
the  part  of  the  judge,  is  one  which  does  not  yield  in  importance  to 
the  more  definite  and  ordinary  one  of  directing  them   in  matters  of 

8  Dewar  v.  Purday,  3  Ad.  &  Ell.  (30  E.  C.  L.  R.)  166. 

^  Roberts  v.  Croft,  7  C.  &  P.  (32  E.  C.  L.  R.)  376.  A  nonsuit  for  not  giving 
material  evidence  within  the  county  must  be  claimed  at  the  trial  :  Howv,  Pick- 
arcl,  2  M.  &  W.  373  ;  and  see  as  to  this,  Clark  v.  Dunsford,  2  C.  B.  (52  E.  C.  L. 
R.)  724. 

'  Strofher  v.  Hutchinson,  4  Bing.  N.  C.  (33  E.  C.  L.  R.)  83  ;  see  supra,  n.  {x). 

^  Minchin  v.  Clement,  1  B.  &  Aid.  252  ;  Mathews  v.  Smith,  2  Y.  &  J.  426. 

'  Where  the  terms  iised  in  a  declaration  founded  on  a  penal  clause  in  a  statute 
are  ambiguous,  they  will  after  verdict  be  so  construed  as  to  sustain  the  verdict : 
Lord  Huntingtower  v.  Gardiner,  1  B.  &  C.  (8  E.  C.  L.  R.)  297  ;  Avery  v.  Hoole, 
2  Cowp.  825.  And  therefore  where  the  declaration  alleged  in  some  counts  the 
"  giving  money  for  voting,"  and  there  was  no  evidence  of  a  previous  agreement 
to  give  money,  which  was  necessary  to  constitute  the  offence,  the  Court  (leave 
having  been  reserved  to  move  to  enter  a  nonsuit)  directed  a  nonsuit  to  be 
entered.  For  the  declaration,  to  be  sustainable,  must  be  taken  to  import  a  pre- 
vious agreement,  and  of  that  there  was  no  evidence. 

"^  Murphy  V.  Donlan,  5  B.  &  C.  (11  E.  C.  L.  R.)  178;  Jones  v.  Gibson,  Ibid. 
758  ;  Stuart  v.  Rodgers,  4  M.  &  W.  649.  In  Revett  v.  Brown,  2  M.  &  P.  (17  E. 
C.  L.  R.)  18  ;  it  was  said  this  cannot  be  done  in  action  of  tort:  sed  vide  Had- 
drick  V.  Heslop,  12  Q.  B.  (64  E.  C.  L.  R.)  267. 

"  R.  v.  Phillips,  1  Burr.  305  :  Bernasconi  v.  Farebrother,  3  B.  &  Ad.  (23  E, 
C.  L.  R.)  372. 
47 


810  PROOFS  —  DUTY     OF    THE    JURY. 

law."  The  trial  by  jury  is  a  system  admirably  adapted  to  the  investi- 
gation of  the  truth  ;  but  in  order  to  obtain  the  full  benefit  to  be 
derived  from  the  united  discernment  of  a  jury,  it  must  be  admitted 
to  be  essential  that  their  attention  should  be  skilfully  directed  to  the 
points  material  for  their  consideration. 


[*811]  *CHAPTER  III. 

THE  DUTY   OF   THE   JURY. 

A  JURY  taken  from  the  body  of  the  community  may  well  be  pre- 
sumed to  be  possessed  of  such  knowledge  and  experience,  derived 
from  their  intercourse  with  society,  as  will  peculiarly  fit  them  for  the 
determination  of  all  disputed  facts  arising  out  of  the  ordinary  trans- 
actions of  life.  It  must,  however,  be  recollected,  that  jurors,  unac- 
customed as  they  usually  are  to  judicial  investigations,  require,  in 
complicated  cases,  all  the  aid  which  can  be  derived  from  the  experi- 
ence and  penetration  of  the  judge,  to  direct  their  attention  to  the 
essential  points,  and  enable  them  to  arrive  at  a  just  conclusion.  The 
law,  in  its  wisdom,  ultimately  relies  upon  their  integrity  and  under- 
standing, but  nevertheless  anxiously  prepares  the  way  for  a  correct 
conclusion,  by  excluding  from  their  consideration  all  such  evidence 
as  is  likely  to  embarrass,  mislead,  or  prejudice  them  in  the  course  of 
their  inquiry.  So  far  the  law  proceeds  by  certain  and  definite  rules. 
Much  yet  remains  to  be  done  of  a  nature  which  cannot  be  defined  : 
to  divest  a  case  of  all  its  legal  encumbrances  ;  to  resolve  a  compli- 
cated mass  of  evidence  into  its  most  simple  elements  ;  to  exhibit  clearly 
the  connection,  bearing  and  importance  of  its  distinct  and  separated 
parts,  and  their  combined  tendency  and  eifect,  stripped  of  every  ex- 
trinsic and  superfluous  consideration  which  might  otherwise  embar- 
rass or  mislead  :  and  to  do  this  in  a  manner  suited  to  the  comprehen- 
sion and  understanding  of  an  ordinary  jury,  is  one  of  the  most  ardu- 

°  See  3  Couim.  375.  When  the  evidence  is  gone  tln-ough  on  both  sides,  the 
judge,  in  the  presence  of  the  parties,  the  counsel,  and  all  others,  sums  up  the 
whole  to  the  jury,  omitting  all  superfluous  circumstances  :  observing  wherein 
the  main  question  and  principal  issue  lies  ;  stating  what  evidence  has  been 
given  to  support  it,  with  such  remarks  as  he  thinks  necessary  for  their  direc- 
tion, and  giving  them  hia  opinion  in  matters  of  law  arising  upon  the  evidence. 


TO     WEIGH     PROBABILITIES.  812 

ous  as  well  as  the  most  important  duties  incident  to  *the  [-^n-iQ-i 
judicial  office.''  There  is,  perhaps,  no  instance  in  which  the  •-  *^-' 
natural  and  acquired  powers  of  the  mind  are  more  strikingly  and 
beneficially  exerted  than  in  a  court  of  justice,  where  a  confused  mass 
of  evidence  relating  to  an  intricate  case  is,  by  the  effect  of  a  vigor- 
ous, acute  and  comprehensive  mind,  reduced  into  regularity  and 
order. 

On  the  discharge  of  this  great  duty  the  dearest  interests  of  society, 
the  very  issues  of  life  and  death,  frequently  depend. 

To  offer  any  remarks  on  this  head  would  be  irrelevant,  as  well  as 
presumptuous.  Some  observations  will,  under  another  division,  be 
made  upon  the  force  and  weight  of  evidence,  and  on  the  general  prin- 
ciples which  relate  to  that  branch  of  the  subject. 

The  law,  to  use  an  ordinary  phrase,  has  no  scales  wherein  to  weigh 
different  degrees  of  probability,''  still  less  to  *ascertain  what    (-^r.-,r,-| 
weight  of  evidence  shall  amount  to  absolute  proof  of  any  dis-    ^ 
puted  fact. 

Its  business  is  to  define,  to  distinguish,  and  to  apply  legal  conse- 
quences to  ascertained  facts  ;  but  whether  a  fact  be  probable  or  im- 
probable, true  or  false,  admits  of  no  legal  definition  or  test.  The 
principles  on  which  the  investigation  and  ascertainment  of  truth  de- 
pend, are  fixed  and  invariable,  however  the  particular  processes  pre- 
scribed by  different  systems  of  law  for  the  purpose  of  investigation 
may  vary. 

"  Notwithstanding  the  splendid  advantages  which  in  practice  are  known  to 
emanate  from  this  wise  and  venerable  institution,  it  is  not  to  be  disguised  that 
in  some,  and  those  essential,  respects,  it  is  liable  to  objections,  from  which  an 
ordinary  tribunal,  constituted  of  professional  judges,  would  be  more  likely  to  be 
free.  Jurors  are  liable  to  pi-ejudice  and  bias,  and  even  partiality,  from  local 
and  personal  connection  ;  their  very  prejudices  in  favor  of  right  may  frequently 
tempt  them  to  put  their  oaths  in  peril,  by  their  desire  to  act  according  to  their 
own  notions  of  justice,  when  those  are  at  variance  with  defined  and  general,  but 
wise  rules  of  law  ;  they  act  but  casually  ;  they  have  no  professional  character  to 
sustain  ;  they  assign  no  reasons  for  their  decisions  ;  in  effect  they  are  not  amen- 
able for  corrupt  decisions  ;  and  it  can  rarely  happen  that  their  individual  and 
personal  characters  are  at  stake.  In  many  instances,  too,  they  are  ill  suited,  1)y 
their  previous  habits,  to  decide  on  the  effect  of  legal  instruments,  and  other 
matters  involved  in  and  complicated  with  legal  rules  and  presumptions.  If  such 
objections  were  not  in  practice  to  be  counteracted  by  the  discretionary  aid,  ad- 
vice and  guidance  of  the  presiding  judge,  and  if  the  errors  and  mistakes  of  juries 
were  not  to  be  subject  to  revision  and  correction,  it  must  be  admitted  b}'  its  warm- 
est admirers  that  this  mode  of  trial  would  frequently  be  precarious  and  unsatis- 
factory. 

''  Infra,  note  (c). 


813  PROOFS  —  DUTY    OF    THE    JURY. 

As  the  power  of  discriminating  between  truth  and  falsehood  de- 
pends rather  upon  the  exercise  of  an  experienced  and  intelligent 
mind  than  upon  the  application  of  artificial  and  technical  rules,  the 
law  of  England  has  delegated  this  important  office  to  a  jury  of  the 
country,^ 

One  great  advantage  derived  from  this  venerable  institution  is, 
that  this  mode  of  trial  excludes  a  number  of  technical  and  artificial 
rules  and  distinctions,  which,  but  for  the  complete  and  absolute  sepa- 
ration of  law  from  fact,  would  be  sure  to  arise.  Were  the  decision 
of  facts  to  be  constantly  referred  to  the  same  individual,  the  frequent 
occurrence  of  similar  combinations  of  facts  would  tempt  him  to  frame 
general  and  artificial  rules,  which,  when  they  were  applicable,  would 
save  mental  exertion  in  particular  instances;  and  perhaps  a  laudable 
wish  to  decide  consistently,  and  that  fondness  for  generalizing  which 
]s  incident  to  every  reflecting  mind,  would  tend  to  the  same  point, 
and  would  lead  to  the  introduction  of  refined  and  subtle  distinctions. 
A  juror,  on  the  contrary,  called  on  to  discharge  his  duty  but  seldom, 
possesses  neither  inclination  nor  opportunity  to  generalize  and  refine; 
unfettered,  therefore,  by  technicalities,  he  decides  according  to  the 
natural  weight  and  force  of  the  evidence.*^ 

r*'i!lJ.1        *  Although  all  questions  of  pure  fact  belong  peculiarly  to 
the  province  of  a  jury,*'  who  are  to  be  guided  in  their  deci- 

"  Beccaria  (sect.  14)  thus  expresses  himself:  Ma  questa  morale  certezza  di 
prove  e  piu  facile  il  sentirla  che  I'esattamente  definirla.  Percio  io  credo  ottima 
lege  quella,  che  stabilisce  assessor!  al  giudice  principale  presi  dalla  sorte  e  non 
dalla  scelta,  per  chh  in  questo  caso  h  piu  sicura  I'ignoranza  che  giudica  per 
sentimento,  che  la  scienza  che  giudica  per  opinione.  Again  he  says  :  Io  parlo 
di  probabilita  in  materia  di  delitti,  che  par  meritar  pena  debbono  esser  certi. 
Ma  svanira  il  paradosso,  per  chi  considera  che  rigorosamente  la  certezza  morale 
non  e  che  una  probabiliti\,  ma  probabilitil  tale  che  fe  chiamato  certezza,  perchfe 
ogni  uomo  di  buon  senso  vi  acconsente  necessariemente  per  una  consuetudine, 
nata  dalhi  necessita  di  agire  ed  anteriore  ad  ogni  speculazione  ;  la  certezza  che 
se  richiede  peraccertare  un  uomo  reo  fe  dunque  queUa  che  determina  ogni  uomo 
nelle  operazioni  piCi  importante  della  vita. 

*  As  to  the  discharging  of  a  jury  where  they  cannot  agree,  see  Morris  v. 
Davies,  3  C.  &  P.  (14  E.  C.  L.  R.)  427.     There,  on  an  issue  out  of  Chancery  in 

'  In  civil  cases  the  jury  are  to  determine  according  to  the  weight  of  the  evi- 
dence :  Crahtree  v.  lieed,  50  111.  20G  ;  Barnelt  v.  Warily  42  Vt.  80  ;  Knowles  v. 
Sc7-ihner,  57  Me.  495;  Silver  Minimj  Co.  v.  Fall,  6  Nev.  116.  It  is  suflicicnt  if 
the  evidence  on  the  whole  agrees  with  and  supports  the  hypothesis  which  it  is 
adduced  to  prove  ;  but  in  criminal  cases  it  must  be  such  as  to  produce  a  moi-al 
certainty  of  guilt  and  to  exclude  any  other  reasonable  hypothesis  :  James  v. 
Slate,  45  Miss.  572. 


LEGAL     PRESUMPTIONS,     ETC.  814 

sion  by  their  conscientious  judgment  and  belief,  yet  it  is  to  be  recol- 
lected, that  in  many  instances  the  eflfect  of  particular  evidence  is  the 
subject  of  legal  definition  and  cognizance,  as  in  the  case  of  all  legal 
presumptions  resulting  in  particular  fiicts.  It  will  be  proper,  there- 
fore, in  the  first  place,  briefly  to  inquire  to  what  extent  a  jury  is 
restrained  by  legal  rules  ;  and,  in  the  next  place,  to  make  some  general 
observations  on  the  natural  force  and  weight  of  evidence. 

With  a  view  to  the  first  consideration,  that  is,  how  far  the  law 
itself  interferes  as  to  the  force  or  measure  of  evidence,  it  is  to  bp 
recollected,  that  except  in  the  few  instances  where  a  jury  determine 
by  the  actual  evidence  of  their  senses,  all  evidence  is  either,  first, 
direct;  that  is,  where  witnesses  state  or  depose  to  facts  of  which  they 
have  had  actual  knowledge:  or  secondly,  it  is  indirect ;  and  indirect 
evidence  is  either  artificial  or  natural.  Artificial,  where  the  law,  by 
arbitrary  appointment,  annexes  to  particular  evidence  a  force  or  effi- 
cacy beyond  that  which  naturally  belongs  to  it;  as  in  the  case  of 
records,  which,  for  the  sake  of  public  convenience,  are  usually  made 
final  *and  conclusive  evidence  of  the  facts  recorded.®  So  in  r*Qir-]. 
all  instances  of  legal  presumptions,  whether  they  be  absolute 
and  conclusive,*"  like  the  2)rcesumptiones  juris  et  de  jure  of  the  Roman 
law,  or,  as  the  prcesuniptiones  juris,  be  operative  only  until  they  be 
rebutted  by  proof  to  the  contrary  :  or  such  artificial  evidence  may 
be  of  a  conventional  nature,  as  where  the  parties  by  deed  or  writ- 
ten agreement  constitute  the  particular  instrument  to  be  the  appro- 
priate expositor  of  their  intentions,  and  the  legal  memorial  of  the 
facts  which  it  contains.  In  these  and  some  other  instances  the  law 
prescribes  the  extent  to  which  the  evidence  shall  operate;  and  in 
these  and  all  other  cases,  where  a  rule  of  law  intervenes,  a  jury  is 
bound  by  that  rule  of  law,  even  though  it  be  in  opposition  to  their 
own  conclusion  as  to  the  truth  of  the  fact  drawn  from  all  circum- 
stances. Or,  secondly,  the  evidence  is  purely  natural,  where  the  jury 
decide  according  to  the  natural  weight  and  effect  of  the  circum- 
stances, either  by  the  aid  of  experience,  where  former  experience 
supplies  such  natural  presumptions,  or  by  the  aid  of  reason  exercised 
upon  the  circumstances,  or  by  the  joint  and  united  aid  of  experience 
and  reason.^ 

order  to  inform  the  conscience  of  the  Chancellor,  the  jury  could  not  agree,  and 
the  parties  refusing  to  consent  to  discharge  them,  the  judge  did  so  on  his  own 
responsibility. 

«  Supra,  p.  742.  '  Siqn-a,  p.  747. 

«  Sir  W.  Blackstone,   3  Comm.  371,  following  the  example  of  Lord   Coke, 


816  PROOFS  —  DUTY    OF    THE    JURY. 

*Juries  are  bound  by  all  the  rules  and  presumptions  of 
L  -J  law,  as  far  as  they  apply  :  they  are  to  confine  themselves 
strictly  to  the  matters  put  in  issue  by  the  pleadings  ;  they  are  bound 
by  the  admissions  of  the  parties  upon  record ;  and  although  they  are 
not  bound  by  estoppels,  as  the  parties  might  have  been  had  the  matter 
of  estoppels  been  pleaded,  yet  they  are  usually  bound  by  legal  estop- 
pels which  could  not  have  been  pleaded,  and  also  by  all  such  matters 
in  the  nature  of  estoppels  as  in  point  of  law  conclude  the  parties. 
They  are  bound  to  give  the  proper  legal  effect  to  all  instruments  es- 
tablished by  competent  evidence,  and  to  notice  all  matters  which  are 
noticed  by  the  court ;  they  are  to  be  governed  by  the  order  of  proof 
vthich  the  law  prescribes,  and  their  verdict  must  be  founded  on  the 
evidence  adduced  in  the  cause. 

It  is  now  perfectly  settled  that  a  juror  cannot  give  a  verdict 
founded  on  his  own  private  knowledge  ;  for  it  could  not  be  known 
whether  the  verdict  was  according  to  or  against  the  evidence  :^  it  is 
very  possible  that  the  private  grounds  of  belief  might  not  amount  to 
legal  evidence. 

And  if  such  evidence  were  to  be  privately  given  by  one  juror  to 
the  rest,  it  would  want  the  sanction  of  an  oath,  and  the  juror  would 

classes  all  circumstantial  evidence  as  violent,  probable,  or  light  presumptions ; 
making  no  distinction  between  such  inferences  as  result  immediately  in  respect 
of  some  association  pointed  out  by  previous  experience,  and  those  which  are 
derived  by  the  aid  of  reason  exercised  upon  the  special  circumstances.  Accord- 
ing to  this  classification,  the  presumption  is  violent  where  the  circumstances 
necessarily  attend  the  fact ;  probable  where  the  circumstances  usually  attend 
the  fact ;  and  light  presumptions,  or  rash  presumptions,  are  those  which  have 
no  weight  or  validity  at  all.  The  last  branch  of  the  division  seems  to  be  wholly 
useless,  for  an  inference  of  no  tveight  is  a  mere  unwarrantable  assumptio7i. 
The  division  of  all  circumstantial  evidence  into  circumstances  which  necessarily 
or  usually  attend  such  facts  is  one  of  a  questionable  nature,  inasmuch  as  it 
tends  to  confound  those  inferences  wliich  are  the  pure  result  of  experience  with 
those  which  result  either  from  reason  alone,  exercised  upon  the  circumstances, 
or  upon  reason  and  experience  jointly.  It  is  very  possible  that  circumstances 
may  supply  moral  proof,  although  not  one  of  them  be  such  as  either  necessarily 
or  usually  attends  the  fact ;  the  infei-ence  may  be  entirely  independent  of  asso- 
ciations founded  on  experience,  and  rest  wholly  upon  the  exclusive  force  and 
nature  of  particular  circumstances.  Thus,  in  an  instance  cited  below,  where  a 
highway  robber  was  struck  on  the  face  by  the  prosecutor  with  a  key,  and  was 
identified  by  the  complete  impression  which  he  bore  on  his  face,  the  circum- 
stance was  conclusive,  but  it  was  neither  a  necessary  nor  an  usual  one,  with 
reference  to  the  fact  to  be  proved. 

h  y>  Comm.  :'j7')  ;  And.  321  ;  Beg.  v.  Eosser,  7  C.  &  P.  (32  E.  C.  L.  R.)  648  ; 
Mauley  v.  Shaw,  Car.  &  N.  (41  E.  C.  L.  R.)  361. 


LEGAL    PRESUMPTIONS,     ETC.  816 

not  be  subject  to  cross-examination.  If,  therefore,  a  juror  know  any 
fact  material  to  the  issue,  he  ought  to  be  sworn  as  a  witness,  and  is 
liable  to  be  cross-examined  ;  *and  if  he  privately  state  such  p^.g.,--, 
facts  it  will  be  a  ground  of  motion  for  a  new  trial.'  It  some-    L  -* 

times  happens  that  evidence  which  is  admitted  for  one  purpose  may 
be  no  evidence  for  another  purpose,  and  in  such  a  case  a  jury  is  bound 
to  apply  the  evidence  so  fixr  only  as  it  is  legally  applicable.  Thus,  if 
A.  and  B.  be  tried  at  the  same  time,  a  confession  made  by  the  one, 
but  which  criminates  the  other,  ought  not  to  operate  with  the  jury 
against  the  latter. 

Where  the  jury  find  a  general  verdict  they  are  bound  to  apply  the 
law  as  delivered  by  the  court,  in  criminal  as  well  as  civil  cases. 

Previous  to  the  remarks  which  will  be  made  on  the  force  and  weight 
of  evidence,  Avhether  direct  or  circumstantial,  it  is  to  be  observed, 
that  the  measure  of  proof  sufficient  to  warrant  the  verdict  of  a  jury 
varies  much,  according  to  the  nature  of  the  case. 

Evidence  which  satisfies  the  minds  of  the  jury  of  the  truth  of  the 
fact  in  dispute,  to  the  entire  exclusion  of  every  reasonable  doubt, 
constitutes  full  proof  of  the  fact;  absolute  mathematical  or  metaphy- 
sical certainty  is  not  essential,  and  in  the  course  of  judicial  investi- 
gations would  be  usually  unattainable. 

Even  the  most  direct  evidence  can  produce  nothing  more  than  such 
a  high  degree  of  probability  as  amounts  to  moral  certainty.  From 
the  highest  degree  it  may  decline,  by  an  infinite  number  of  gradations, 
until  it  produces  in  the  mind  nothing  more  than  a  mere  preponderance 
of  assent  in  favor  of  the  particular  fact. 

The  distinction  between  full  proof  and  mere  preponderance  of  evi- 
dence is  in  its  application  very  important.  lu  all  criminal  cases  what- 
soever, it  is  essential  to  a  verdict  of  condemnation,  that  the  guilt  of 
the  accused  should  be  fully  proved  ;  neither  a  mere  preponderance  of 
evidence,  nor  any  weight  of  preponderant  evidence,  is  sufficient  for 
the  *purpose,  unless  it  generate  full  belief  of  the  fact  to  the  . 
exclusion  of  all  reasonable  doubt,  •-         -■ 

But  in  many  cases  of  a  civil  nature,  where  the  right  is  dubious, 
and  the  claims  of  the  contesting  parties  are  supported  by  evidence 
nearly  equipoised,  a  mere  preponderance  of  evidence  on  either  side 
may  be  sufficient  to  turn  the  scale.  This  happens,  as  it  seems,  in 
all  cases  where  no  presumption  of  law,  or  prima  facie  right,  operates 
in  favor  of  either  party  ;  as,  for  example,  where  the  question  be- 
tween the  owners  of  contiguous  estates  is,  whether  a  particular  tree 

'And.  321. 


81S  PROOFS  —  DUTY     OF    THE    JURY. 

near  the  boundary  grows  on  the  land  of  one  or  the  other.  But 
even  where  the  contest  is  as  to  civil  rights  only,  a  mere  preponder- 
ance of  evidence,  such  as  would  induce  a  jury  to  incline  to  the  one 
side  rather  than  the  other,  is  frequently  insufficient.  It  would  be 
so  in  all  cases  where  it  fell  short  of  fully  disproving  a  legal  right 
once  admitted  or  established,  or  of  rebutting  a  presumption  of  law. 
If  a  party  claimed  as  devisee  against  the  heir  at  law,  full  proof  of 
the  devise  with  all  its  formalities,  would  be  essential;  circumstantial 
evidence,  which  merely  showed  it  to  be  more  probable  that  the  testa- 
tor had  made  a  will  in  favor  of  the  party  claiming  as  devisee,  than 
that  he  had  not  done  so,  would  be  insufficient.  So,  were  a  devise  to 
be  fully  established  by  one  who  claimed  as  devisee,  it  would  not  be 
sufficient  to  show  a  mere  probability  that  the  devisor  had  made  a  sub- 
sequent will,  revoking  the  former.''  One  who  seeks  to  charge  another 
with  a  debt,  must  do  so  by  full  and  satisfactory  proof;  and  on  the 
other  hand,  where  a  debt  has  once  been  established  by  competent 
proof,  the  debtor  cannot  discharge  himself  but  by  full  proof  of  satis- 
faction. Again,  where  the  law  raises  a  presumption  in  favor  of  the 
fact,  the  contrary  must  be  fully  proved,  or  at  least  such  facts  must 
be  proved  as  are  sufficient  to  raise  a  contrary  and  stronger  presump- 
tion.' Thus,  the  law  presumes  a  man  to  be  innocent  of  a  crime 
„  *until  his  guilt  be  proved;  but  if  the  fact  be  proved  that  A. 
^  killed  B.,  then  the  presumption  of  law  which   before  was  in 

favor  of  A.,  is  now  against  him,  and  malice  will  be  presumed,  unless 
he  can  establish  flicts  which  justify  or  extenuate  the  act."' 

Another  distinction  to  be  observed  upon  is,  between  j9rm<f  facie 
and  conclusive  evidence :  primd  facie  evidence  is  that  which,  not 
being  inconsistent  with  the  falsity  of  the  hypothesis,  nevertheless 
raises  such  a  degree  of  probability  in  its  favor  that  it  must  prevail  if 
it  be  accredited  by  the  jury,  unless  it  be  rebutted  or  the  contrary 
^rovedi',  conclusive  evidence,  on  the  other  hand,  is  that  which  ex- 
cludes, or  at  least  tends  to  exclude,  the  possibility  of  the  truth  of  any 
other  hypothesis  than  the  one  attempted  to  be  established.  All  evi- 
dence is  strong  or  weak  by  comparison  :  in  civil  cases  slight  evidence 
of  right  or  title  is  sufficient,  as  against  a  stranger  who  possesses  no 
color  of  title.  Thus  the  mere  possession  of  goods  by  one  who  found 
them,  is  evidence  of  property  as  against  a  wrongdoer,  in  an  action 
of  trover."     The  occupation  of  land,  however  recent,  Avill  enable  the 

^  Ilarwood  v.  Goodrir/ht,  Cowp.  87.         '  Sec  Ji.  v.  HasUngfeld,  supra,  p.  749. 
"  See  tit.  Murder. 

°  Armory  v.  fJelamirie,  Str.  505  ;  1  Smith  L.  C.  and  notes  ;  Bridges  v.  Ilawkes^ 
21  L.  J.,  il  C.  75. 


PRIMA  FACIE  AND  CONCLUSIVE  EVIDENCE.     819 

occupier  to  maintain  trespass  against  a  stranger."  So,  in  a  settlement 
case,  proof  that  a  remote  ancestor  of  the  pauper  was  settled  in  the 
appelhint  parish  would  be  sufficient  primd  facie  evidence,  and  would 
prevail  unless  it  were  rebutted  by  proof  of  some  later  settlement.  So, 
a  special  custom  in  a  particular  manor  may  be  proved  by  a  single 
instance  in  whicli  it  has  been  acted  upon.''  So,  a  prescription  may  in 
some  instances  be  supported  by  proof  of  user  for  twenty  years.  On 
the  other  hand,  in  criminal  cases,  it  is  essential  that  tlie  evidence 
should  be  of  a  conclusive  nature.  But  here  it  is  to  be  observed,  that 
it  very  frequently  happens  in  criminal,  as  well  as  civil  proceedings, 
*that  evidence  which  in  itself  is  but  inconclusive,  derives  a  rt-oyn-i 
conclusive  quality  from  mere  defect  of  proof  on  the  part  of 
the  adversary  or  accused. 

Where  a  party,  being  apprised  of  the  evidence  to  be  adduced 
against  him,  has  the  means  of  explanation  or  refutation  in  his  power, 
if  the  charge  or  claim  against  him  be  unfounded,  and  does  not  ex- 
plain or  refute  that  evidence,  the  strongest  presumption  arises  that 
the  charge  is  true,  or  the  claim  well  founded.  It  would  be  contrary 
to  all  experience  of  human  nature  and  conduct  to  come  to  any  other 
conclusion. 

Evidence  to  be  weighed  by  a  jury  consists  either  in,  1st,  the  direct 
testimony  of  witnesses  ;  or  2dly,  indirect  or  circumstantial  evidence  I'l 
or  3dly,  in  both,  either  united  or  opposed  to  each  other.  The  nature 
and  force  of  such  evidence  may  be  considered  either  separately  or  in 
conflict. 

First,  as  to  the  direct  testimony  of  witnesses.  The  credit  due  to 
the  testimony  of  witnesses  depends  upon,  1st,  their  integrity  and 
honesty  ;  2dly,  their  ability ;  3dly,  their  number,  and  the  consistency 
of  their  testimony ;  4thly,  the  conformity  of  their  testimony  with 
experience  ;  and  5thly,  the  coincidence  of  their  testimony  with  col- 
lateral circumstances. 

1st,  Their  integrity :  A  witness,  to  be  trust-worthy,  must  be  both 
willing  and  able  to  declare  the  truth.     His  credibility  is  founded,  in 

°  Catteris  v.  Cowper,  4  Taunt.  547  ;  Purnell  v.  Young,  3  M.  &  W.  288  ;  Whit- 
Ungton  v.  Boxall,  5  Q.  B.  (48  E.  C.  L.  R.)  139. 

P  See  tit.  Custom. 

^  Such  indirect  evidence  corresponds  vv^itli  the  signa  of  the  Roman  law,  and 
ViWh  the  aijunta  or  TeKfi7/pia  of  the  Greeks,  and  supplied  principally  the  materials 
of  the  artificiaUs  probatio  of  the  Roman  lawyers.  Argument,  according  to 
Quinctilian,  is  defined  to  be  "  ratio  prohationem  prcestans  qua,  colligitur  aliud 
per  aliud,  et  qucc  quod  est  dubium  per  id  quod  duhium  non  est  conjirmat  ;''^  see 
Glassford's  Essay  on  the  Principles  of  Evidence  563. 


820  PROOFS  —  DUTY    OF    THE    JURY. 

the  first  instance,  upon  experience  of  human   veracity,  from  -which 

the  law  presumes  that  a  disinterested  witness,  who  delivers  his  testi- 

r*oo-|  -1    mony  under  *the  sanction  of  an  oath,  and  under  the  peril  of 

the  temporal  inflictions  due  to  perjury,  will  speak  the  truth. 

Although  the  law  does  not  exclude  persons  actually  convicted  of 
infamous  crimes,'  and  such  as  have  an  interest  in  the  event  of  the 
suit,  or  in  the  record.^  yet  the  credit  of  a  witness  is  always  for  the 
consideration  of  the  jury.^ 

A  witness  of  depraved  and  abandoned  character  may  not  be  un- 
worthy of  credit,  where  it  appears  that  there  is  not  the  slightest 
motive  or  inducement  for  misrepresentation ;  for  there  is  a  natural 
tendency  to  declare  the  truth,  which  is  never  wholly  eradicated,  even 
from  the  most  vicious  minds ;  and  the  danger  of  detection,  and  the 
risk  of  temporal  punishment,  may  operate  as  restraints  upon  the 
most  unprincipled,  even  where  motives  for  veracity  of  a  higher  nature 
are  wantino;. 

But  it  is  to  be  remarked,  that  it  is  diflScult  to  detect  the  motives 
which  may  influence  a  depraved  and  corrupted  mind ;  and  hence  it 
is  for  the  jury  to  consider,  Avhether  the  apparent  want  of  motive  to 
deceive  be  sufiicient  to  accredit  an  exceptionable  witness,  and  whether 
some  assurance  of  the  actual  absence  of  such  a  motive  be  not  neces- 
sary to  warrant  their  confidence.  A  jury  may,  no  doubt,  in  a  crimi- 
nal case,  convict  on  the  testimony  of  an  accomplice,  but  then  it  is 
expected  that  the  tainted  credit  of  the  witness  should  be  supported 
by  circumstances  confirmatory  of  his  testimony  in  material  points ; 
so  that  in  practice  such  a  witness  is  considered  to  be  incredible,  unless 
his  testimony  be  supported  by  undoubted  facts  and  unexceptionable 
witnesses.^ 

•■  Siqjra,  tit  Witness.  °  Ibid. 

^  It  is  a  maxim,  falsus  in  uno,  falsus  in  omnibus^  that  if  a  witness  is  dis- 
covered on  the  trial  to  be  wilfully  false  in  one  statement,  the  jury  may  disbe- 
lieve him  altogether  :  State  v.  Brantley,  63  N.  C.  518  ;  Callahan  v.  Shaw,  24 
Iowa  441  ;  Comm.  v.  Billings,  97  Mass.  405 ;  PauUtte  v.  Brown,  40  Mo.  52 ; 
Brett  V.  Catlin,  47  Barb.  404;  Peoples.  Strong,  30  Cal.  151;  Blanchard  v. 
Pratt,  37  111.  243  ;  Mead  v.  McGraw,  19  Ohio  St.  55  ;  State  v.  Spencer,  64  N.  C. 
316. 

^  There  is  no  rule  of  law  that  I'cquires  absolutely  that  the  testimony  of  an  ac- 
complice should  be  corroborated.  The  jury  may,  if  thoy  think  pi'oper,  convict 
upon  such  evidence  alone:  State  v.  Stehhins,  29  Conn.  463  ;  State  v.  Watson,  31 
Mo.  361  ;  Gray  v.  Peojde,  26  111.  344.  The  testimony  of  an  accomplice  must  be 
corroboi-ated  by  evidence  tending  to  connect  the  defendant  with  the  commission 
of  the  offence  charged :   Ui^ton  v.  State,  5  Clarke  465  ;  State  v.  Hoioard,  32  Vt. 


CREDIT     OF    WITNESS  —  INFLUENCE.  821 

It  frequently  happens  that  a  witness  labors  under  some  influence 
arising  from  natural  affection,  near  connection,  or  mere  expectation 
of  contingent  benefit  or  evil,  which  may  afford  a  strong  temptation 
to  perjury.  In  these  as  in  so  many  other  cases,  it  is  for  the  jury  to 
estimate  the  *degree  of  influence  by  which  the  testimony  of  r-^o.-,.^-| 
a  witness  is  likely  to  be  corrupted,  and  to  determine  whether 
under  all  the  circumstances,  he  may  be  the  witness  of  truth.' 

In  arriving  at  this  conclusion,  a  consideration  of  the  demeanor  of 
the  witness  upon  the  trial,  and  of  the  manner  of  giving  his  evidence, 
both  in  chief  and  upon  cross-examination,  is  oftentimes  not  less 
material  than  the  testimony  itself.''  An  over-forward  and  hasty  zeal 
on  the  part  of  the  Avitness  in  giving  testimony  which  will  benefit  the 
party  whose  witness  he  is,  his  exaggeration  of  circumstances,  his 
reluctance  in  giving  adverse  evidence,  his  slowness  in  answering,  his 
evasive  replies,  his  affectation  of  not  hearing  or  not  understanding 
the  question,  for  the  purpose  of  gaining  time''  to  consider   the  effect 

*•  The  Roman  law,  De  testibus,  provides  thus  : — "  Testium  fides  diligenter  ex- 
aminanda  est.  Ideoque  in  persona  eorum  exploranda  erunt  impiHmis  conditio  cu- 
Jusque;  utrum  quis  decurio  an  plebeius  sit,  vero  et  an  honestce  et  inculpatoe  vitce, 
an  notatus  quis  et  reprehensihilis  ;  an  locuples  vel  egens  sit  ut  lucri  causa  quid 
facile  admittat ;  vel  an  inimicus  ei  sit  versus  quern  testimonium  fert,  vel  amicus 
ei  sit  2)ro  quo  testimonium  dat.  Nam  si  careat  suspicione  testimonium,  vel  prop- 
ter 2'>CTsonam  a  qua  fertur  quod  honesta  sit,  vel  propter  causam  quod  7ieque  lucri 
neque  gratice  neque  inimicitice  causa  fit,  admittendum.'''' 

"  Sir  W.  Bhickstone,  3  Com.  373,  observes,  "In  short,  by  this  method  of  ex- 
amination, and  this  only,  the  persons  vfho  are  to  decide  upon  the  evidence  have 
an  opportunity  of  observing  the  quality,  age,  education,  understanding,  behavior 
and  inclinations  of  the  witness :  in  which  points  all  persons  must  appear  alike, 
when  their  depositions  are  reduced  to  writing  and  read  to  the  judge  in  the  ab- 
sence of  those  who  made  them,  and  yet  as  much  may  be  frequently  collected 
from  the  manner  in  which  the  evidence  is  delivered  as  the  matter  of  it." 

"  Mr.  Evans,  2  Pothier  258,  observes,  that  "  a  Welsh  witness,  who  intends  to 
give  unfair  testimony,  always  affects  an  ignorance  of  the  English  language  ;  in 

380.  The  uncorroborated  testimony  of  two  accomplices  will  not  sustain  a  ver- 
dict of  guilty :  Johnson  v.  State,  4  Greene  65.  See  further  as  to  accomplices 
and  the  necessity  that  they  should  be  corroborated :  Phillips  v.  State,  34  Ga. 
502  ;  Sumpter  v.  State,  11  Fla.  247  ;  McKenzie  v.  State,  24  Ark.  636  ;  Benton  v. 
Henry,  2  Cald.  83  ;  U.  S.  v.  Harris,  2  Bond  311  ;  Parsons  v.  State,  43  Ga.  197  ; 
Lopez  V.  State,  34  Tex.  133  ;  Pitcher  v.  People,  16  Mich.  142 ;  Montgomery  v. 
State,  40  Ala.  684 ;  Cummings  v.  State,  4  Kans.  225 ;  State  v.  Moore,  25  Iowa, 
128  ;  State  v.  Potter,  42  Vt.  495 ;  People  v.  Haynes,  55  Barb.  450  ;  38  How.  Pr. 
369  ;  Frazer  v.  People,  54  Barb.  306 ;  Brown  v.  State,  18  Ohio  St.  496  ;  Miller  v. 
Miller,  20  N.  J.  (Eq.)  216  ;  People  v.  Arjier,  39  Cal.  403  •,  People  v.  Melvane, 
Ibid.  614  5  State  v.  Litchfield,  58  Me.  267. 


823  PROOFS  —  DUTY    OF    THE    JURY. 

r*823"1  ^^  *his  answer ;  precipitancy  in  answer,  without  waiting  to 
hear  or  to  understand  the  nature  of  the  question ;  his 
inability  to  detail  any  circumstances  wherein,  if  his  testimony  were 
untrue  he  would  be  open  to  contradiction,  or  his  forwardness  in 
minutely  detailing  those  where  he  knows  contradiction  to  be  impossi- 
ble ;  an  aifectatjon  of  indifference  ;  are  all  to  a  greater  or  less  extent 
obvious  marks  of  insincerity. 

Oa  the  other  hand,  his  promptness  and  frankness  in  answering 
questions  without  regard  to  consequences,  and  especially  his  unhesi- 
tating readiness  in  stating  all  the  circumstances  attending  the  trans- 
action, by  which  he  opens  a  w^ide  field  for  contradiction  if  his  testi- 
mony be  false,  are,  as  well  as  numerous  others  of  a  similar  nature, 
strong  internal  indications  of  his  sincerity.  The  means  thus  afforded 
by  a  viva  voce  examination,  of  judging  of  the  credit  due  to  witnesses, 
especially  where  their  statements  conflict,  are  of  incalculable  advan- 
tage in  the  investigation  of  truth  ;  they  not  unfrequently  supply  the 
only  true  test  by  which  the  real  characters  of  the  witnesses  can  be 
appreciated."' 

2d.  Their  ahility.  The  ability  of  a  witness  to  speak  the  truth 
^,^^  must  of  course  depend  on  the  opportunities  wdiich  he  has 
*-          -*    had  of  observing  the  fact,''  the  accuracy  *of  his  powers  of 

consequence  of  which,  the  effect  of  cross-examination  is  not  only  weakened  by 
the  intervention  of  an  interpreter,  but  the  witness  has  time  to  collect  and  pre- 
pare his  answer.  An  ignorant  witness  will,  however,  frequently  express  himself 
with  doubt  and  hesitation,  out  of  mere  awkwardness,  or  from  superabundant 
caution,  especially  if  he  imagine  that  there  is  any  design  to  entrap  him  into  ex- 
pressions contrary  to  his  real  meaning. 

"  This  kind  of  hesitation  is  very  general  with  such  persons  when  plied  with 
questions  of  an  hypothetical  nature,  and  when  the  answer  is  not  so  much  an  act 
of  testimony  as  of  reasoning  ;  such  as,  If  it  had  been  so,  must  you  not  have  recol- 
lected, &c.  AVhere  proof  is  actually  given  of  a  fact  which  a  witness  could  not 
but  know  and  recollect,  his  expressing  himself  with  doubt  and  uncertainty  is  to 
be  regarded  as  an  act  of  wilful  misrepresentation." 

^  Tti  magis  scire  potes  quanta  Jides  habcnda  sit  testihus  qiife  et  cujus  digni- 
tatis et  quantce  cestimationis  sunt  et  qui  simpliciter  visi  sunt  dicere,  utrum 
unum  eundemqiie  meditatum  sermonem  attulerint,an  ad  ea  qua;  interrogaveras  ex 
tempore  vei'isimilia  resjjonderint.''^  Adrian's  Epistle  to  Varus,  legate  of  Cilicia; 
Ff.  22  ;  5,  3. 

"  When  the  guilt  of  the  prisoner  depends  whoUij  on  proof  of  identity,  it  is  im- 
possible to  ini(uire  too  minutely  into  the  means  and  opportunity  which  the  wit- 
nesses had  of  observing  the  person,  so  as  to  be  able  to  speak  with  certainty. 
Many  instances  have  occurred  in  which  woll-intcntioned  witnesses  have  sworn 
positively  in  this  respect,  and  yet  have  been  mistaken.  I  have  frequently  heard 
Mr.  J.  Bayley  observe  to  juries,  that  fear  has  a  very  different  effect  upon  differ- 


ABILITY     OF    WITNESSES.  821 

discerning/  and  the  faithfulness  of  his  memory  in  retaining  the  facts 
once  observed  and  known. 

Where  a  witness  testifies  to  a  fact  which  is  wholly  or  partially  the 
result  of  reason  exercised  upon  particular  circumstances,  it  is  obvious 
that  the  reasons  of  the  witness  for  drawing  that  conclusion  are  of  the 
most  essential  importance  for  the  purpose  of  ascertaining  whether  his 
conclusion  was  a  correct  one  ;  although  it  should  be  borne  in  mind 
that  the  reasons  which  a  witness  gives  for  his  belief  are  those  which 
occur  to  him  upon  his  examination,  and  are  frequently  diflferent  from 
those  which  actually  produced  his  belief  or  opinion. 

These  observations  apply  with  peculiar  force  to  all  questions  of 
skill  and  science,  and  even  to  many  of  mere  ordinary  fact :  thus, 
where  a  witness  is  called  to  state  that  another  witness  is  not  to  be 
believed  upon  his  oath,  his  grounds  for  arriving  at  that  conclusion  are 
of  the  highest  importance.  Where,  on  the  other  hand,  a  witness 
states  the  impression  on  his  senses,  by  any  subject-matter  of  frequent 
experience,  his  reasons  are  of  little  weight;  he  will  frequently  assign 
a  bad  reason  where  his  knowledge  is  certain. 

The  probability  that  the  witness  had  originally  a  clear  perception 
of  the  fact  and  its  circumstances,  is  strengthened  and  confirmed  by 
the  consideration  that  they  were  of  such  a  nature  as  were  likely  to 
attract  his  attention.  On  the  other  hand,  it  is  diminished  by  the 
consideration  *that  the  transaction  was  remote,  and  such  as  ^ 

was  not  likely  to  excite  notice  and  observation.^  L     "  -^ 

Such  considerations  operate  strongly  where  detailed  evidence  is 
given  of  oral  declarations,  after  the  lapse  of  a  considerable  interval 
of  time.  Ever}''  man's  experience  teaches  him  how  fallible  and 
treacherous  the  human  memory  in  such  cases  is.  In  its  freedom  from 
this  defect  consists  one  great  excellence  of  documentary  evidence, 
and  its  main  superiority  over  that  which  is  merely  oral ;  and  on  this 

ent  persons ;  in  some  it  prevents  the  clear  perception,  whilst  in  others  it  assists 
in  making  an  indelible  impression, 

y  See  Gilb.  Law  of  Ev.  151,  2d  ed. 

^  C.  B.  Gilbert,  in  his  Law  of  Evidence  151,  2d  edit.,  says,  "Another  thing 
that  would  render  his  (a  single  witness's)  testimony  doubtful,  is  the  not  giving 
the  reasons  and  causes  of  his  knowledge  ;"  and  again,  "  The  same  may  be  said 
as  to  persons  who  take  upon  them  to  remember  things  long  since  transacted, 
for  if  the  matter  be  frivolous  they  ought  to  tell  the  causes  of  their  memory, 
otherwise  the  memory  is  little  to  be  accredited  ;  for  they  are  rather  to  be  sup- 
posed as  rash  persons  who  take  upon  them  to  swear  what  they  do  not  perfectly 
remember,  than  that  they  are  really  under  the  awe  and  conscience  of  an  oath  ; 
for  there  they  would  be  able  to  tell  the  reason  and  certain  marks  of  their  re- 
membrance."    Sed  qncere. 


825  PROOFS  —  DUTY     OF    THE    JURY. 

principle  it  is,  that  the  law,  out  of  policy,  frequently  deems  mere  oral 
evidence  to  be  too  weak,  and  requires  a  written  voucher  to  prove  the 
fact.'' 

Of  all  kinds  of  evidence,  that  of  extra-judicial  and  casual  declara- 
tions is  the  weakest  and  most  unsatisfactory;  such  words  are  often 
spoken  without  serious  intention,  and  they  are  always  liable  to  be 
mistaken  and  misremembered,  and  their  meaning  is  liable  to  be  mis- 
represented and  exaggerated.^ 

*A  hearer  is  apt  to  clothe  the  ideas  of  the  speaker,  as  be 
'-"'-'  understands  them,  in  his  own  language,  and  by  this  trans- 
lation the  real  meaning  must  often  be  lost.  A  witness,  too,  who  is 
not  entirely  indifferent  between  the  parties,  will  frequently,  without 
being  conscious  that  he  does  so,  give  too  high  a  coloring  to  what  has 
been  said. 

The  necessity  for  caution  cannot  be  too  strongly  and  emphatically 
impressed,  where  particular  expressions  are  detailed  in  evidence, 
which  were  used  at  a  remote  distance  of  time,  or  to  which  the  atten- 
tion of  the  witnesses  was  not  particularly  called,  or  where  miscon- 
ception was  likely  to  arise  from  their  situation  and  the  circumstances 
under  which  they  were  placed,  or  from  the  prejudice  of  the  witness, 
especially  if  his  object  was  to  extract  an  admission  for  the  purposes 
of  the  cause. *^ 

*  See  the  Statute  of  Frauds,  &c. 

*  Finalmente  e  quasi  nulla  la  credibilita  del  testimonio,quando  si  faccia  delle 
parole  un  delitto,  poichfe  il  tuono,  il  gesto,  tutto  cio  che  precede,  e  cid  che  siegue, 
le  differenti  idee,  che  gli  uomini  attacano  alle  stesse  parole,  alterano,  e  modifi- 
cano  in  maniera  i  detti  di  un  uomo,  che  e  quasi  impossibile,  il  ripeterle,  quali 
precisamente  furon  dette.  Di  piu  le  azioni  violenti,  e  fuori  dell'  uso  ordinario, 
quali  sono  i  veri  delitti,lascian  tracciadi  se  nella  moltitudine  delle  circonstanze, 
e  negli  effetti  che  ne  derivano,  ma  le  parole  non  rimangono  che  nella  memoria 
per  16  pill  infidele  e  spesso  sedotta  dagli  ascoltanti.  Egli  h  adunque  di  gran 
lunga  piu  facile  una  alunnia  sulle  parole,  che  sulle  azioni  di  un  uoma,  poichfe 
di  questc  quanto  niaggior  numero  di  circostanze  si  adducono  in  prova,  tanto 
niaggiori  iiiezzi  si  sommistrano  al  reo  per  giustificarsi.     Beccaria,  sec.  13. 

I  once  heard  a  learned  judge  (now  no  more),  in  summing  up  on  a  trial  for 
forgery,  inform  the  jury  that  the  prisoner,  in  a  conversation  which  he  had  had 
with  one  of  the  witnesses,  had  said,  "  I  am  the  drawer,  the  acceptor,  and  the 
endorser  of  the  bill:"  whilst  the  learned  judge  was  commenting  on  the  force 
of  these  expressions,  he  was,  at  the  instance  of  the  prisoner,  set  right  as  to  the 
statonient  of  the  witness,  which  was,  that  the  prisoner  had  said,  "  I  I>:noic>  the 
drawer,  acceptor,  and  the  endorser  of  tlie  bill."  Had  the  witness,  and  not  the 
judge,  made  the  mistake,  the  consequences  might  have  been  fatal.  The  prisoner 
was  acquitted. 

"  Admitting  evidence  of  loose  conversations  to  revive  an  antiquated  debt, 


OF    WITNESSES  —  NUMBER  —  CONSISTENCY.  826 

Such  evidence  is  fabricated  easily,  contradicted  with  difficulty. 
In  cases  of  this  kind,  the  conduct  of  the  parties,  and  those  facts  and 
circumstances  of  the  case  which  are  free  from  suspicion,  are  fre- 
quently the  safest  and  surest  guides  to  truth.  Evidence  of  this  nature 
is  of  the  very  ^weakest  kind,  where  it  is  doubtful  whether  r*Q07i 
the  party  making  the  admission  knew  his  legal  rights  and 
situation.^ 

3d.  Their  number  and  cotmstenct/ :  The  testimony  of  a  single  wit- 
ness, where  thei'e  is  no  ground  for  suspecting  either  his  ability  or  his 
integrity,  is  a  sufficient  legal  ground  for  belief;  that  it  is  strong 
enough  to  produce  actual  belief,  every  man's   experience   will   vouch. 

It  has  been  alleged'^  that  two  witnesses  are  essential  to  convict  a 
man  of  crime ;  for  if  there  be  but  one,  it  is  no  more  than  the  asser- 
tion of  one  man  against  that  of  another. 

It  is  not  easy  to  comprehend  ht.w  the  mere  denial  of  guilt  by  an 
accused  person,  whose  life  may  depend  upon  the  credit  attached  to 
that  denial,  is  to  be  placed  in  competition  with  the  testimony  of  a  wit- 
ness examined  upon  oath.  According  to  this  species  of  logic,  if  six 
men  Avere  to  commit  a  crime,  it  would  require  the  testimony  of  at 
least  seven  witnesses  to  convict  them  upon  their  joint  trial. ^ 

which  Avould  otherwise  have  been  barred  by  lapse  of  time;  (see  the  observations 
of  the  court,  4  B.  &  A.  571  :)  or  to  render  a  party  liable  for  a  debt  contracted 
in  infancy,  was  considered  so  objectionable  that  it  led  to  the  statute  9  Geo.  IV. 
c.  14,  ss.  1,  5. 

**  As  where,  in  a  settlement  case,  the  declaration  of  an  inhabitant  is  given  in 
evidence  ;  or  a  party  makes  admissions  involving  matter  of  law  as  well  as  mat- 
ter of  fact;  as  in  reference  to  marriage:  see  tit.  Marriage,  Polygamy.  Or  a 
discharge  under  an  Insolvent  Act:  Sunimersett  v.  Adanisou,  1  Bing.  (8  E.  C 
L  R.)  73  ;  but  see  JScott  v.  Clare,  3  Camp.  236  ;  and  Slatterie  v.  Poolei/,  6  M.  & 
W.  664. 

^  Montesquieu,  Sp.  of  Laws,  b.  12,  c.  3. 

^  The  civil  law  requires  proof  by  two  witnesses,  according  to  its  universal 
maxim,  "  Dnius  respoiisio  testis  ornnino  non  audiatur.''^  Sir  W.  Blackstone 
observes,  3  Comm.  370,  that  to  extricate  itself  out  of  one  absurdity,  the  practice 
of  the  civil  law  courts  plunged  itself  into  another.  For  as  they  do  not  allow  a 
less  number  than  two  witnesses  to  he  plena  probaiio,  they  call  the  testimony  of 
one  semiplena  probatio  only,  on  which  no  sentence  can  be  founded  :  to  make 
up,  therefore,  the  necessary  complement  of  witness,  where  they  had  one  only 
to  a  single  fact,  they  permitted  the  party  himself,  plaintiff  or  defendant,  to  be 
examined  on  his  own  behalf,  and  administered  to  him  what  is  called  the  sup- 
pletory  oath ;  and  if  his  oath  happened  to  be  in  his  own  favor,  this  immediately 
converted  the  half  proof  into  a  whole  one.  Now,  however,  the  party  is  a  per- 
fectly competent  witness  in  all  courts,  though  the  weight  which  should  attach 
to  his  testimony  must  be  for  the  court  or  jury  to  weigh.      It  might  perhaps  be 


828  PROOFS  —  DUTY    OF    THE    JURY. 

P^nQo-i  *But  although  the  testimony  of  a  single  witness,  whose 
credit  is  untainted,  be  sufficient  to  warrant  a  conviction,  even 
in  a  criminal  case,  yet  undoubtedly  any  additional  and  concurrent 
testimony  adds  greatly  to  the  credibility  of  testimony,  in  all  cases 
where  it  labors  under  doubt  or  suspicion  ;  for  then  an  opportunity  is 
afforded  of  comparing  the  testimony  of  the  witnesses  on  minute  and 
collateral  points,  on  which,  if  they  were  the  witnesses  of  truth,  their 
testimony  would  agree,  but  if  they  were  false  witnesses,  would  be 
likely  to  differ.° 

Where  direct  testimony  is  opposed  by  conflicting  evidence  or  by 
ordinary  experience,  or  by  the  probabilities  supplied  by  the  circum- 
stances of  the  case,  the  consideration  of  the  number  of  witnesses  be- 
comes most  material.  It  is  more  improbable  that  a  number  of  wit- 
nesses should  be  mistaken,  or  that  they  should  have  conspired  to 
commit  a  fraud  by  direct  perjury  than  that  one  or  a  few  should  be 
mistaken,  or  wilfully  perjured.  In  the  next  place,  not  only  must  the 
difficulty  of  procuring  a  number  of  false  witnesses  be  greatly  increased 
in  proportion  to  the  number,  but  the  danger  and  risk  of  detection 
must  be  increased  in  a  far  higher  proportion  ;  for  the  points  on  which 
their  false  statements  may  be  compared  with  each  other,  and  with 
ascertained  facts,  must  necessarily  be  greatly  multiplied. 
r*S9Qn  *The  consistency  of  testimony  is  also  a  strong  and  most 
important  test  for  judging  of  the  credibility  of  witnesses. 
Where  several  witnesses  bear  testimony  to  the  same  transaction,  and 
concur  in  their  statement  of  a  series  of  particular  circumstances,  and 
the  order  in  which  they  occurred,  such  coincidences  exclude  all  ap- 
prehension of  mere  chance  and  accident,  and  can  be  accounted  for 
only  by  one  or  other  of  two  suppositions  ;  either  the  testimony  is 
true,  or  the  coincidences  are  the  result  of  concert  and  conspiracy. 
If,  therefore,  the  independency  of  the  witnesses  be  proved,  and  the 
supposition  of  previous  conspiracy  be  disproved,  or  rendered  highly 
improbable,  to  the  same  extent  will  the  truth  of  their  testimony  be 
established.'' 

well,  if,  as  a  general  rule,  where  other  evidence  is  procurable,  the  evidence  of 
tho  party  was  merely  regarded  as  suppletory.  The  instances  of  perjury  and 
treason  arc  exceptions  to  the  rule  of  the  common  law  requiring  only  one  wit- 
ness;  the  former,  upon  grounds  of  strict  principle,  for  there  the  oath  of  one 
witness  is  opposed  to  the  oath  of  another  witness ;  and,  in  the  latter,  as  a  mere 
rule  of  policy  devised  for  protecting  the  liberty  of  the  subjei^t. 

8  Quia  a  cordato  judice  mendacia  testium  deprehendi  possunt,  si  diversi  inter- 
royantnr  cum  contra  uniis  facile  sihi  constare  possit :  Puifendorf  568. 

"  See  Lord  Mansfield's  remarks  in  li.  v.  Gcnye,  Cowp.  16.     "It  is  objected 


CREDIT    OF    AVITNESSES  —  CONSISTENCY.  829 

So  far  does  tliis  pi-inciple  extend,  that  in  many  cases,  except  for 
the  purpose  of  repelling  the  suspicion  of  fraud  and  concert,  the  credit 
of  the  witnesses  themselves  for  honesty  and  veracity  may  become 
wholly  immaterial.  Where  it  is  once  established  that  the  witnesses 
to  a  transaction  are  not  acting  in  concert,  then,  although  individually 
they  should  be  unworthy  of  credit,  yet  if  the  coincidences  in  their 
testimony  be  too  numerous  to  be  attributed  to  mere  accident,  they 
cannot  possibly  be  explained  on  any  other  supposition  than  that  of 
the  truth  of  their  statement. 

The  considerations  which  tend  to  negative  any  suspicion  of  concert 
and  collusion  between  the  witnesses,  are  either  extrinsic  of  their  tes- 
timony; such,  for  instance,  as  relate  to  their  character,  situation, 
their  remoteness  from  each  other,  the  absence  of  previous  intercourse 
with  each  other  or  with  the  parties,  and  of  all  interest  in  the  subject- 
matter  of  litigation  ;  or  they  arise  internally,  from  a  minute  and 
critical  examination  and  comparison  of  the  testimony  itself. 

*The  natu7'e  oi  snch  coincidences  is  most  important:  are    ^     „^^ 

r*8Son 

they  natural  ones,  which  bear  not  the  marks  of  artifice  and  '-  -• 
premeditation  ?  Do  they  occur  in  points  obviously  material,  or  in 
minute  and  remote  points  which  are  not  likely  to  be  material,  or  in 
matters  the  importance  of  which  could  not  have  been  foreseen  ?  The 
number  of  such  coincidences  is  also  worthy  of  the  most  attentive  con- 
sideration :  human  cunning,  to  a  certain  extent,  may  fabricate  coin- 
cidences, even  with  regard  to  minute  points,  the  more  effectually  to 
deceive ;  but  the  coincidences  of  art  and  invention  are  necessarily 
circumscribed  and  limited,  Avhilst  those  of  truth  are  indefinite  and 
unlimited:  the  witnesses  of  art  will  be  copious  in  their  detail  of  cir- 
cumstances, as  far  as  their  provision  extends ;  beyond  this  they 
Avill  be  sparing  and  reserved,  for  fear  of  detection,  and  thus  their 
testimony  will  not  be  even  and  consistent  throughout :  but  the 
witnesses  of  truth  will  be  equally  ready  and  equally  copious  upon 
all  points. 

It  is  here  to  be  observed,  that  partial  variances  in  the  testimony 
of  different  witnesses,  on  minute  and  collateral  points,  although  they 
frequently  afford  the  adverse  advocate  a  topic  for  copious  observation, 
are  of  little  importance,  unless  they  be  of  too  prominent  and  striking 
a  nature  to  be  ascribed  to  mere  inadvertence,  inattention,  or  defect 
of  memory. 

that  these  books  are  of  no  authority ;  but  if  both  the  repoi'ters  were  the  worst 
that  ever  reported,  if  substantially  they  report  a  case  in  the  same  way,  it  is 
demonstrative  of  the  truth  of  what  they  report,  or  they  could  not  agree." 
48 


831  PROOFS  —  DUTY    OF    THE    JURY. 

It  has  been  well  remarked  by  a  great  observer,'  that 
'-  J  *  "  the  usual  character  of  human  testimony  is  substantial 
truth  under  circumstantial  variety."  It  so  rarely  happens  that  wit- 
nesses of  the  same  transaction  perfectly  and  entirely  agree  in  all 
points  connected  with  it,  that  an  entire  and  complete  coincidence  in 
every  particular,  so  far  from  strengthening  their  credit,  not  unfre- 
quently  engenders  a  suspicion  of  practice  and  concert. 

The  real  question  must  always  be  whether  the  points  of 
^        "^    variance  and  of  discrepancy  be  of  so  strong  and  decisive  *a 

^"I  know  not  (says  Dr.  Paley)  a  more  rash  or  unphilosopbical  conduct  of 
the  understanding  than  to  reject  the  substance  of  a  story  by  reason  of  some 
diversity  in  the  circumstances  with  which  it  is  related.  The  usual  character  of 
human  testimony  is  substantial  truth  under  circumstantial  variety.  This  is 
what  the  daily  experience  of  courts  of  justice  teaches.  When  accounts  of  a 
transaction  come  from  the  mouths  of  different  witnesses  it  is  seldom  that  it  is 
not  possible  to  pick  out  apparent  or  real  inconsistencies  between  them.  These 
inconsistencies  ai-e  studiously  displayed  by  an  adverse  pleader,  but  oftentimes 
with  little  impression  upon  the  minds  of  the  judges.  On  the  contrary,  a  close 
and  minute  agreement  induces  the  suspicion  of  confederacy  and  fraud.  When 
written  histories  touch  upon  the  same  scenes  of  action,  the  comparison  almost 
always  aifords  ground  for  a  like  reflection.  Numerous  and  sometimes  important 
variations  present  themselves  ;  not  seldom,  also,  absolute  and  final  contradic- 
tions ;  yet  neither  the  one  nor  the  other  are  deemed  sufficient  to  shake  the 
credibility  of  the  main  fact.  The  embassy  of  the  Jews  to  deprecate  the  execu- 
tion of  Claudius's  ord'er  to  place  his  statue  in  their  temple,  Pliilo  places  in  har- 
vest, Josephus  in  seed-time ;  both  contemporary  writers.  No  reader  is  led  by 
their  inconsistency  to  doubt  whether  such  an  embassy  was  sent,  or  whether 
such  an  order  was  given.  Our  own  history  supplies  examples  of  the  same  kind: 
in  the  account  of  the  Marquis  of  Argyle's  death,  in  the  reign  of  Charles  the 
Second,  we  have  a  very  remarkable  contradiction.  Lord  Clarendon  relates  that 
he  was  condemned  to  be  hanged,  which  was  performed  on  the  same  day;  on  the 
contrary,  Burnet,  Woodrow,  Heath,  and  Echard  concur  in  stating  that  he  was 
beheaded,  and  that  he  was  condemned  upon  the  Saturday  and  executed  upon 
the  Monday.  Was  any  reader  of  English  history  ever  sceptic  enough  to  raise 
a  doubt  whether  he  was  executed  or  not?" 

It  may  not,  perhaps,  be  deemed  irrelevant  to  mention  a  circuit  anecdote  in 
illustration  of  the  foregoing  observations.  Not  long  before  the  death  of  Mr. 
Justice  Le  Blanc,  and  whilst  he  was  presiding  as  one  of  the  judges  of  assize  at 
Lancaster,  he  had  a  fainting  fit.  Some  time  afterwards,  the  circumstance  being 
the  topic  of  conversation  amongst  a  considerable  number  of  the  members  of 
the  bar  who  had  been  present,  a  doubt  was  started,  whether  the  fact  had  taken 
place  in  the  ordinary  Civil  Court  or  in  the  Crown  Court,  in  which  civil  causes 
were  usually  tried  after  the  termination  of  the  business  on  the  crown  side;  and 
those  wlio  bad  been  actual  spectators  were  divided  as  to  their  recollection  in 
which  of  the  two  courts  the  circumstance  had  occurred,  many  asserting  that  it 
took  place  in  the  one  court,  and  nearly  as  many  that  it  occurred  in  the  other 
court. 


CREDIT     OF    WITNESSES  —  VARIANCE  —  FORCE.  832 

nature  as  to  render  it  impossible,  or  at  least  difficult,  to  attribute  them 
to  the  ordinary  sources  of  such  varieties,  inattention  or  want  of 
memory. 

It  would,  theoretically  speaking,  be  improper  to  omit  to  observe 
that  the  weight  and  force  of  the  united  testimony  of  numbers,  upon 
abstract  mathematical  principles,  increases  in  a  higher  ratio  than  that 
of  the  mere  number  of  such  witnesses. 

Upon  those  principles,  if  definite  degrees  of  probability  could  be 
assigned  to  the  testimony  of  each  witness,  the  resulting  probability 
in  favor  of  their  united  testimony  would  be  obtained,  not  by  the  mere 
addition  of  the  numbers  expressing  the  several  probabilities,  but  by  a 
process  of  multiplication. 

Such  considerations,  however,  are  of  little  practical  importance. 
The  maxim  of  law  is  jjonderantur  testes,  non  numerantur.  No  defi- 
nite degrees  of  probability  can  in  practice  be  assigned  to  the  testi- 
monies of  witnesses ;  their  credibility  usually  depends  upon  the 
special  circumstances  attending  each  particular  case,  upon  their  con- 
nection with  the  parties  and  the  subject-matter  of  litigation,  their 
previous  characters,  the  manner  of  delivering  their  evidence,  and 
many  other  circumstances,  by  a  careful  consideration  of  which  the 
value  of  their  testimony  is  usually  so  well  ascertained  as  to  leave  no 
room  for  mere  numerical  comparison. 

In  some  instances,  nevertheless,  where  from  paucity  of  circum- 
stances, the  usual  means  of  judging  of  the  credit  due  to  conflicting 
witnesses  fail,  it  is  possible  that  the  abstract  principles  adverted 
to  may  operate  by  way  of  approximation,  especially  in  those  cases 
where  the  decision  is  to  depend  upon  the  mere  preponderance  of 
evidence. 

4th.  The  conformity  of  their  testimony  with  experience :  As  one 
principal  ground  of  faith  in  human  testimony  is  experience,  it  neces- 
sarily follows  that  such  testimony  is  strengthened  or  weakened  by 
its  conformity  or  inconsistency  with  our  previous  knowledge  and  ex- 
perience.    A  *man  easily  credits  a  witness  who  states  that 

•  •  r*8331 

to  have  happened  which  he  himself  has  known  to  happen    L         J 

under  similar  circumstances  ;  he  may  still  believe,  although  he  should 

not  have  had  actual  experience  of  similar  facts;  but  where,  as  in  the 

familiar  instance  stated  by  Mr.  Locke,-"  that  is  asserted  which  is  not 

J  Vol.  11. ,  p.  276.  "  The  Dutch  ambassador  told  the  king  of  Slam  that  in  his 
country  the  water  was  so  hard  in  cold  weather,  that  it  would  bear  an  elephant  if 
he  were  there.  The  king  replied,  Hitherto  I  have  believed  the  strange  things 
you  told  me,  because  I  looked  upon  you  as  a  sober,  fair  man,  but  now  I  am  sure 
you  lie." 


833  PROOFS  —  DUTY    OF    THE    JURY. 

only  unsupported  by  common  experience,  but  contrary  to  it,  belief  is 
slow  and  difficult. 

In  ordinary  cases,  if  a  witness  was  to  state  that  which  was  incon- 
sistent with  the  known  course  of  nature,  or  even  with  the  operation 
of  the  common  principles  by  which  the  conduct  of  mankind  is  usually 
governed,  he  would  probably  be  disbelieved  ;  for  it  might  be  more 
^  probable  in  the  particular  instance  that  the  witness  was  mistaken,  or 
meant  to  deceive,  than  that  such  an  anomaly  had  really  occurred. 
But  although  the  improbability  of  testimony,  with  reference  to  ex- 
perience, affords  a  just  and  rational  ground  for  doubt,  the  very  illus- 
tration cited  by  Locke  shows  that  mere  improbability  is  by  no  means 
a  certain  test  for  trying  the  credibility  of  testimony,  without  regard 
to  the  number,  consistency,  character,  independence  and  situation 
of  the  witnesses,  and  the  collateral  circumstances  which  tend  to  con- 
firm their  statement.''  In  ordinary  *cases  where  a  witness 
r*8341  ... 

L          -■    stands  wholly  unimpeached  by  any  extrinsic  circumstances, 

^  In  ohserving  upon  the  ,2;eneral  principles  on  which  the  credibility  of  human 
testimony  rests,  it  may  not  be  irrelevant  to  advert  to  the  summary  positions  on 
this  subject  advanced  by  Mr.  Hume.  He  says,  in  his  Essay,  vol.  2,  sec.  lU,  "A 
miracle  is  a  violation  of  the  laws  of  nature  ;  and  as  a  firm  and  unaltei-able  expe- 
rience has  established  these  laws,  the  proof  against  a  miracle,  from  the  very  na- 
ture of  the  fact,  is  as  entire  as  any  argument  from  experience  can  possibly  be 
imagined."  As  a  matter  of  abstract  philosophical  consideration  (for  in  that 
point  of  view  only  can  the  subject  be  adverted  to  in  a  work  like  this).  Mr. 
Hume's  reasoning  appears  to  be, altogether  untenable.  In  the  first  place,  the 
very  basis  of  his  inference  is  that  faith  in  human  testimony  is  founded  solely 
upon  experience:  this  is  by  no  means  the  fact;  the  credibility  of  testimony 
frequently  depends  upon  the  exercise  of  reason,  on  the  effect  of  coincidences  in 
testimony,  which,  if  collusion  be  excluded,  cannot  be  accounted  for  but  upon 
the  supposition  that  the  testimony  of  concurring  witnesses  is  true  ;  so  much  so, 
that  their  individual  character  for  veracity  is  frequently  but  of  secondary  im- 
portance, supra,  p.  829.  Its  credibility  also  greatly  depends  upon  confirmation 
by  collateral  circumstances,  and  on  analogies  supplied  by  the  aid  of  reason  as 
well  as  of  mere  experience.  But  even  admitting  experience  to  be  the  basis,  the 
sole  basis,  of  such  belief,  the  position  built  upon  it  is  unwarrantable,  and  it  is 
fallacious,  for  if  adopted  it  would  lead  to  error.  The  position  is,  that  human 
testimony,  the  force  of  w^iich  rests  upon  experience,  is  inadequate  to  prove  a 
violation  of  the  laws  of  nature,  which  are  established  by  firm  and  unalterable  ex- 
perience. The  very  essence  of  the  argument  is,  that  the  force  of  human  testi- 
mony (the  efiicacy  of  which  in  the  abstract  is  admitted)  is  destroyed  by  an  oppo- 
site, conflicting,  and  superior  force,  derived  also  from  experience.  If  this  were 
so,  the  argument  would  be  invincible;  but  the  question  is,  whether  mere  previ- 
ous inexperience  of  an  event  testified  is  directly  opposed  to  human  testimony,  so 
tliat  mere  experience  as  strongly  proves  that  the  thing  za-  not  as  previous  experi- 
ence of  the  credibility  of  human  testimony  proves  that  it  is.     Now  a  miracle,  or 


FORCE     or    TESTIMONY.  835 

credit  ouglit  to  be  given   to   his    *testiniony,  unless   it  be  so    r*oqr-i 
grossly  improbable  as  to  satisfy  the  jury  that  he  is  not  to  be 

violiition  of  the  laws  of  nature,  can  mean  nothinrr  more  than  an  event  or  effect 
never  observed  before,  and  to  the  production  of  which  the  known  laws  of  nature 
are  inadequate  ;  and  on  the  other  hand,  an  event  or  effect  in  nature  never  ob- 
served before  is  a  violation  of  the  laws  of  nature-:  Thus,  to  take  Mr.  Hume's  own 
example,  "  it  is  a  miracle  that  a  dead  man  should  come  to  life,  because  that  has 
never  been  observed  in  any  age  or  country;"  probably  in  the  same  sense,  the 
production  of  a  new  metal  from  potash  by  means  of  a  powerful  and  newly  dis- 
covered agent  in  nature,  and  the  first  observed  descent  of-  meteoric  stones  were 
violations  of  the  law  of  nature ;  they  were  events  which  had  never  before  been 
observed,  and  to  the  production  of  which  the  known  laws  of  nature  were  inade- 
quate. But  none  of  these  events  can,  with  the  least  propriety,  be  said  to  be 
against  or  contrary  to  the  laws  of  nature,  in  any  other  sense  than  that  they  have 
never  before  been  observed,  and  that  the  laws  of  nature,  as  far  as  they  were 
previously  known,  were  inadequate  to  their  production.  The  proposition  of  Mr. 
Hume  ought  then  to  be  stated  thus :  human  testimony  is  founded  on  experience, 
and  is  therefore  inadequate  to  prove  that  of  which  there  has  been  no  previous 
experience.  Now  whether  it  be  plain  and  self-evident  that  the  mere  negation  of 
experience  of  a  particular  fact  necessarily  destroys  all  faith  in  the  testimony  of 
those  who  assert  the  fact  to  be  true  ;  or  whether,  on  the  other  hand,  this  be  not 
to  confound  the  principle  of  belief  with  the  subject-matter  to  which  it  is  to  be 
applied,  and  whether  it  be  not  plainly  contrary  to  reason  to  infer  the  destruction 
of  an  active  principle  of  belief  from  the  mere  negation  of  experience,  which  is 
perfectly  consistent  with  the  just  operation  of  that  principle  ;  whether,  in  short, 
this  be  not  to  assume  broadly  that  mere  inexperience  on  the  one  hand  is  necessa- 
rily superior  to  positive  experience  on  the  other,  must  be  left  to  every  man's 
understanding  to  decide.  The  inferiority  of  mere  negative  evidence  to  that 
which  is  direct  and  positive,  is,  it  will  be  seen,  a  consideration  daily  acted  upon 
in  judicial  investigations.  Negative  evidence  is,  in  the  abstract,  inferior  to  posi- 
tive, because  the  negative  is  not  directly  opposed  to  the  positive  testimony  ;  both 
may  be  true.  Must  not  this  consideration  also  operate  where  there  is  mere  in- 
experience, on  the  one  hand,  of  an  event  in  nature,  and  positive  testimony  of  the 
fact  on  the  other?  Again,  what  are  the  laws  of  nature,  established  by  firm  and 
unalterable  experience?  That  there  may  be,  and  are,  general  and  even  unalter- 
able laws  of  Providence  and  nature,  may  readily  be  admitted  ;  but  that  human 
Jcnotvledge  and  experience  of  those  laws  is  unalterable  (which  alone  can  be  the 
test  of  exclusion)  is  untrue,  except  in  a  very  limited  sense  ;  that  is,  it  may  fairly 
be  assumed  that  a  law  of  nature  once  known  to  operate  will  always  operate  in  a 
similar  manner,  unless  its  operation  be  impeded  or  counteracted  by  a  new  and 
contrary  cause.  In  a  larger  sense,  the  laws  of  nature  are  continually  alterable  : 
as  experiments  ai'e  more  frequent,  more  perfect,  and  as  new  phenomena  are 
observed,  and  new  causes  or  agents  are  discovered,  human  experience  of  the  laws 
of  nature  becomes  more  general  and  more  perfect.  How  much  more  extended 
and  perfect,  for  instance,  are  the  laws  which  regulate  chemical  attractions  and 
affinities  than  they  were  two  centuries  ago  !  And  it  is  probable  that  in  future 
ages  experience  of  the  laws  of  nature  will  be  more  perfect  than  it  is  at  present ; 
it  is,  in  short,  impossible  to  define  to  what  extent  such  knowledge  may  be  car- 


836  PROOFS  —  DUTY    OF    THE    JURY. 

r*oop-|    trusted.     Thus,  notwithstanding  *the  general  presumption  of 
law  in  favor  of  innocence,  a  defendant  may  be  convicted  of  a 

tied,  or  whether,  ultimately,  the  whole  may  not  be  resolvable  into  principles  ad- 
mittini;-  of  no  other  explanation  than  that  they  result  immediately  from  the  will 
of  a  superior  Being.  This  at  all  events  is  certain,  that  the  laws  of  nature,  as  in- 
ferred by  the  aid  of  experience,  have  from  time  to  time,  by  the  aid  of  experience, 
been  rendered  more  general  and  more  perfect.  Experience,  then,  so  far  from 
pointing  out  any  unalterable  laws  of  nature,  to  the  exclusion  of  events  or  phe- 
nomena which  have  never  before  been  experienced,  and  which  cannot  be  ac- 
counted for  by  the  laws  already  observed,  shows  the  very  contrary,  and  proves 
that  such  new  events  or  phenomena  may  become  the  foundation  of  more  enlarged, 
more  general,  and  thei-efore  more  perfect  laws.  But  whose  experience  is  to  be 
the  test?  That  of  the  objector  ;  for  the  very  nature  of  the  objection  excludes 
all  light  from  the  experience  of  the  rest  of  mankind.  The  credibility,  then,  of 
human  testimony  is  to  depend  not  on  any  intrinsic  or  collateral  considerations 
which  can  give  credit  to  testimony,  but  upon  the  casual  and  previous  knowledge 
of  the  person  to  whom  the  testimony  is  offered  ;  in  other  words,  it  is  plain  that 
a  man's  scepticism  must  bear  a  direct  proportion  to  his  ignorance.  Again,  if 
Mr.  Hume's  inference  be  just,  the  consequences  to  which  it  leads  cannot  be 
erroneous  :  on  the  other  hand,  if  it  lead  to  error,  the  'nference  must  be  falla- 
cious. The  position  is,  that  human  testimony  is  inadequate  to  prove  that  which 
has  never  been  observed  before  :  and  this,  by  proving  far  too  much  for  the  au- 
thor's purpose,  is  felo  de  se,  and  in  effect  proves  nothing  ;  for  if  constant  inex- 
perience amount  to  stronger  evidence  on  the  one  side  than  is  supplied  by  posi- 
tive testimony  on  the  other,  the  argument  applies  necessarily  to  all  cases  where 
mere  constant  inexperience  on  the  one  hand  is  opposed  to  positive  testimony  on 
the  other.  According,  then,  to  this  argument,  every  philosopher  was  bound  to 
reject  the  testimony  of  witnesses  that  they  had  seen  the  descent  of  meteoric 
stones,  and  even  acted  contrary  to  sound  reason  in  attempting  to  account  for  a 
fact  disproved  by  constant  inexperience,  and  would  have  been  equally  foolish 
in  giving  credit  to  a  chemist  that  he  had  produced  a  metal  from  potash  by  means 
of  a  galvanic  battery.  It  will  not,  I  apprehend,  be  doubted,  that  in  these  and 
similar  instances  the  effect  of  Mr.  Hume's  argument  would  have  been  to  exclude 
testimony  which  was  true,  and  to  induce  false  conclusions  ;  the  principle,  there- 
fore, on  which  it  is  founded,  must  of  necessity  be  fallacious.  Nay,  further,  if 
the  testimony  of  others  is  to  be  rejected,  however  unlikely  they  were  either  to 
deceive  or  be  deceived,  on  the  mere  ground  of  inexperience  of  the  fact  testified, 
the  same  argument  might  be  urged  even  to  the  extravagant  length  of  excluding 
the  authority  of  man's  own  senses  ;  for  it  might  be  said,  that  it  is  more 
probable  that  he  should  have  labored  under  some  mental  delusion,  than 
that  a  fact  should  have  happened  contrary  to  constant  experience  of  the  course 
of  nature. 

In  stating  that  the  inference  attempted  to  be  drawn  from  mere  inexperience 
is  fallacious,  I  mean  not  to  assert  that  the  absence  of  previous  experience  of  a 
particular  factor  phenomenon  is  not  of  the  highest  importance  to  be  weighed  as 
a  circum.stance  in  all  investigations,  whether  they  be  physical,  judicial,  or  his- 
torical :  the  niorc  remote  the  subject  of  testimony  is  from  our  own  knowledge 
and  experience,  the  stronger  ought  the  evidence  to  be  to  warrant  our  assent^ 


FORCE     OF    TESTIMONY.  83G 

heinous  and   even  improbable  crime  upon   the  testimony  of  a  single 
witness. 

*As  experience  shows  that  events  frequently  occur  which  r^ooT-i 
would  antecedently  have  been  considered  most  improbable, 
from  their  inconsistency  with  ordinary  experience,  and  as  r^ooo-i 
*their  improbability  usually  arises  from  want  of  a  more 
intimate  and  correct  knowledge  of  the  causes  which  produced  them, 
mere  improbability  can  rarely  supj)ly  a  sufficient  ground  for  disbe- 
lieving direct  and  unexceptionable  witnesses  of  the  fact,  where  there 
was  no  room  for  mistake. 

5th.  Conformity  with  collateral  circumstances :  Direct  testimony 
is  not  only  capable  of  being  strengthened  or  weakened  to  an  indefinite 
extent  by  its  conformity  on  the  one  hand,  or  inconsistency  on  the 
otber,  with  circumstances  collateral  to  the  disputed  fact,  but  may  be 
totally  rebutted  by  means  of  such  evidence.  A  claimant,  after  his 
case  was  referred  to  by  the  House  of  Lords  and  evidence  taken  on  it, 
presented  an  additional  case,  alleging  an  inscription  on  a  tombstone 
in  a  churchyard  in  Ireland,  which  if  proved  would  sustain  the  claim. 

Neither  is  it  meant  to  deny  that,  in  particular  instances,  and  under  particular 
circumstances,  the  want  or  absence  of  previous  experience  may  not  be  too 
strong  for  positive  testimony,  especially  where  it  otherwise  labors  under  sus- 
picion. What  is  meant  is  this,  that  mere  inexperience,  however  constant,  is  not 
in  itself,  and  in  the  abstract,  and  without  consideration  of  all  the  internal  and 
external  probabilities  in  favor  of  human  testimony,  sufficient  to  defeat  and 
to  destroy  it,  so  as  to  supersede  the  necessity  of  investigation.  Mr.  Hume's 
conclusion  is  highly  objectionable  in  a  philosophical  point  of  view,  inasmuch 
as  it  would  leave  phenomena  of  the  most  remarkable  nature  wholly  unexplained, 
and  would  operate  to  the  utter  exclusion  of  all  inquiry.  Estoppels  are  odious, 
even  in  judicial  investigations,  because  they  tend  to  exclude  the  truth  ;  in 
metaphysics  they  are  intolerable.  So  conscious  was  Mr.  Hume  himself  of  the 
weakness  of  his  general  and  sweeping  position,  that  in  the  second  part  of  his 
10th  section  he  limits  his  inference  in  these  remarkable  terms :  "I  beg  the 
limitations  here  made  may  be  remarked,  when  I  say  that  a  miracle  can  never 
be  proved  so  as  to  be  the  foundation  of  a  system  of  religion ;  for  I  own  that 
otherwise  there  may  possibly  be  miracles  or  violations  of  the  usual  course  of 
nature  of  such  a  kind  as  to  admit  of  proof  from  human  testimony.'''' 

In  what  way  the  use  to  be  made  of  a  fact  when  proved  can  affect  the  validity 
of  the  proof,  or  how  it  can  be  that  a  fact  proved  to  be  true  is  not  true  for  all 
purposes  to  which  it  is  relevant.  I  pretend  not  to  understand.  Whether  a 
miracle,  when  proved,  may  be  the  foundation  of  a  system  of  religion  is  foreign 
to  the  present  discussion  ;  but  when  it  is  once  admitted  that  a  miracle  may  he 
proved  by  human  testimony,  it  necessarily  follows,  from  Mr.  Hume's  own  con- 
cession, that  his  general  position  is  untenable ;  for  that,  if  true,  goes  to  the 
full  extent  of  proving  that  human  testimony  is  inadequate  to  the  proof  of  a 
miracle,  or  violation  of  the  laws  of  nature. 


838  PROOFS  —  DUTY    OF    THE    JURY. 

It  could  not  be  produced.  Several  witnesses  from  the  neighborhood 
swore  that  they  saw  the  tombstone  and  inscription  about  twenty  years 
ago.  There  was  no  discrepancy  in  their  statements,  and  no  witnesses 
called  to  contradict  them.  The  House  held,  that  the  evidence  of  the 
existence  of  the  tombstone  and  of  the  inscription  was  not  sufficient ; 
and  that  the  neglect  of  the  claimant  to  produce  the  evidence  earlier 
raised  suspicions,  Avhich  would  only  be  removed  by  producing  the 
stone,  or  calling  witnesses  of  greater  credit  from  the  neighborhood.^ 
These  positions  lead  immediately  to  an  inquiry  into  the  nature  and 
force  of  indirect  or  circumstantial  evidence. 

Secondly.  Indirect  or  circumstantial  evidence,  or,  as  it  is  fre- 
quently termed,  presumptive  evidence.  Any  evidence  which  is  not 
direct  and  positive™  is  of  this  class.  ^ 

r*8^Q1  "^-^^  inference  or  conclusion  from  circumstantial  or  pre- 
sumptive evidence,  may  be  either  the  pure  result  of  pre- 
vious experience  of  the  ordinary  or  necessary  connection  between  the 
known  or  admitted  facts  and  the  fact  inferred ;  or  of  reason  exer- 
cised upon  the  facts;  or  of  both  reason  and  experience  conjointly. 
And  hence  such  an  inference  or  conclusion  differs  from  a  presump- 
tion, althougli  the  latter  term  has  sometimes,  yet  not  with  strict  pro- 
priety, been  used  in  the  same  extended  sense ;  for  a  presumption  in 
strictness  is  an  inference  as  to  the  existence  of  one  fact,  from  a 
knowledge  of  the  existence  of  some  other  fact,  made  solely  by  virtue 
of  previous  experience  of  the  ordinary  connection  between  the  known 
and  inferred  facts,  and  independently  of  any  process  of  reason  in 
the  particular  instance." 

The  consideration  of  the  nature  of  circumstantial  evidence,  and 
of  the  principles  on  which  it  is  founded,  merits  the  most  profound 
attention.     It  is  essential  to  the  well-being  at  least,   if  not  to  the 

1  Tracy  Peerage  case,  10  CI.  &  F.  154. 

™  For  a  more  copious  statement  of  the  principles  on  which  the  force  of  cir- 
cumstantial evidence  depends,  illustrated  by  numerous  cases,  the  reader  is 
referred  to  a  very  interesting  book,  entitled  "An  Essay  on  the  Rationale  of 
Circumstantial  Evidence,"  by  Mr.  Wills,  and  to  Mr.  Best's  able  book  on 
"  Presumptions." 

°  See  supra,  Presumptions. 

^  As  to  circumstantial  evidence  in  criminal  cases,  see  State  v.  Coleman,  22  La. 
Ann.  455  ;  People  v.  Phipps,  39  Cal.  326  ;  Pitts  v.  State,  43  Miss.  472 ;  State  v. 
Van  Winkle,  6  Nev.  340 ;  U.  S.  v.  Isla  de  Cuba,  2  Cliff.  295.  Circumstantial 
proof,  which  loses  nothing  by  the  lapse  of  time,  may  preponderate  over  the 
recollection  of  one  credible  witness  after  the  lapse  of  seventeen  years:  Ridlei/s 
Adm'rs  v.  Ridley^  1  Cald.  323. 


CIRCUMSTANTIAL    EVIDENCE.  839 

very  existence  of  civil  society,  that  it  should  be  understood,  that  the 
secrecy  with  which  crimes  are  committed  will  not  insure  impunity  to 
the  offender.  At  the  same  time  it  is  to  be  emphatically  remarked, 
that  in  no  case,  and  upon  no  principle,  can  the  policy  of  preventing 
crimes,  and  protecting  society,  warrant  any  inference  which  is  not 
founded  on  the  most  full  and  certain  conviction  of  the  truth  of  the  fact, 
independently  of  the  nature  of  the  offence,  and  of  all  extrinsic  con- 
siderations whatsoever.  Circumstantial  evidence  is  alloweti  to  pre- 
vail to  the  conviction  of  an  offender,  not   because  it  is  necessary 

and  politic  that  it  should  be  resorted  to,"  but  *because  it  is    ^^^^^^ 

.  .  r  8401 

in  its  own  nature  capable  of  producing  the  highest  degree  of   ^         -^ 

moral  certainty  in  its  application.     Fortunately  for  the  interests  of 

society,  crimes,  especially  those  of  great  enormity  and  violence,  can 

rarely  be  committed  without  affording  vestiges  by  which  the  offender 

may  be  traced  and  ascertained. ^     The  very  measures  which  he  adopts 

for  his  security  not  unfrequently  turn  out  to  be  the  most  cogent  argu- 

"  It  is  almost  supei'fluous  to  remark  upon  the  absurd  and  mischievous  doctrine, 
that  the  nature  of  the  crime  ought  at  all  to  influence  the  measure  of  proof,  and 
that,  out  of  policy,  slighter  proof  is  sufficient  in  proportion  to  the  atrocity  of 
the  offence,  according  to  the  pernicious  maxim,  in  atrocissimis  leviores  conjec- 
turoi  svfficiunt  et  licet  judici  jura  transgredi.  Where  any  doubt  exists  as  to  the 
corpus  delicti,  whether  any  crime  has  been  committed,  the  very  reverse  of  the 
above  position  is  true  ;  the  more  atrocious  the  nature  of  the  crime  is,  the  more 
repugnant  it  is  to  the  common  feelings  of  human  nature,  the  more  improbable 
it  is  that  it  has  been  perpetrated  at  all.  "La  credibilita  di  un  testimonio  diviene 
tanto  sensibilment  minore  quanto  piil  crescel'atrocita  di  un  delitto  e  I'inverisi- 
miglianza  delle  circonstanze  ;  tali  sono  per  esempio  la  magia,  fe  la  azioni  gratu- 
itamente  crudeli :"'  Beccaria,  s.  13.  But  when  it  has  once  been  clearly  estab- 
lished that  a  heinous  crime  has  been  perpetrated,  and  the  only  question  is  as  to 
the  jjerpetrator,  it  is  manifest  that  the  atrocity  of  the  crime  mi  the  abstract  raises 
no  probability  either  for  or  against  the  accused,  although  under  particular  cir- 
cumstances it  may  be  a  matter  of  great  importance. 

Thus  on  a  charge  of  infanticide,  where  there  is  a  doubt  whether  the  child 
was  destroyed  by  design,  or  by  accident  during  a  secret  delivery,  the  very 
atrocity  of  the  offence  raises  a  strong  degree  of  probability  in  favor  of  the 
latter  conclusion.  On  the  other  hand,  were  it  clear  from  the  circumstances 
under  which  a  body  was  found,  that  the  party  had  been  murdered,  then  the 
corpus  delicti  being  established,  the  atrocity  of  the  offence  would  in  the  abstract 
raise  no  probability  either  in  favor  of  or  against  any  individual ;  but  if  in  the 
particular  instance  the  question  were,  whether  the  son  of  the  deceased  or  a 
stranger,  was  the  guilty  agent,  then  a  probability  from  the  particular  circum- 
stances would  operate  in  favor  of  the  son.  It  would,  without  reference  to  cir- 
cumstances, be  more  probable  that  a  stranger  had  committed  the  heinous  crime 
of  murder,  than  that  a  son  had  committed  that  horrible  offence  upon  the  person 
of  his  own  father. 

P  See  the  observations  of  Beccaria,  supra,  p.  825. 


840  PROOFS — DUTY    OF    THE    JURY. 

ments  of  guilt.  On  the  other  hand,  it  is  to  be  recollected  that  this 
is  a  species  of  evidence  which  requires  the  utmost  degree  of  caution 
and  vigilance  in  its  application,  and  in  acting  upon  it,  the  just  and 
humane  rule  impressed  by  Lord  Hale''  cannot  be  too  often  repeated  : 
^^tufius  *se7nper  est  errare  in  acquietando,  quam  in  2Junie7ido, 
L         -I    ex  jjarte  misericordice  quam  ezparte  justiticef 

By  circumstantial  or  presumptive  proof  is  meant  that  measure  and 
degree  of  circumstantial  evidence  which  is  sufficient  to  produce  con- 
viction in  the  minds  of  the  jury  of  the  truth  of  the  fact  in  question. 

To  the  validity  of  every  such  proof  it  is  essential,  first,  that  a 
basis  of  facts  be  established  by  sufficient  evidence;  and  in  the  next 
place,  that  the  proper  conclusion  should  be  deduced,  by  the  aid  of 
reason  and  experience,  from  those  facts  and  circumstances  so  estab- 
lished. 

The  force  and  tendency  of  circumstantial  evidence  to  produce 
conviction  and  belief  depend  upon  a  consideration  of  the  coincidence 
of  circumstances  with  the  fact  to  be  inferred;  that  is,  with  the  hypo- 
thesis, and  the  adequacy  of  such  coincidences  to  exclude  every  other 
hypothesis."^ 

All  human  dealings  and  transactions  are  a  vast  context  of  circum- 
stances,  interwoven  and  connected  with  each  other,  and  also  with  the 
natural  world,  by  innumerable  mutual  links  and  ties.  No  one  fact  or 
circumstance  ever  happens  which  does  not  owe  its  birth  to  a  multi- 
tude of  others,  which  is  not  connected  on  every  side  by  kindred  facts, 
and  which  does  not  tend  to  the  generation  of  a  host  of  dependent 
ones,  which  necessarily  coincide  and  agree  in  their  minutest  bearings 
and  relations,  in  perfect  harmony  *and  concord,  without  the 
•-       "'-'    slightest  discrepancy  or  disorder. 

It  is  obvious  that  all  facts  and  circumstances  which  have  really 
happened  were  perfectly  consistent  with  each  other,  for  they  did 
actually  so  consist.     It  is  therefore  a  necessary  consequence,  that  if 

1  Hale  290. 

"■  In  one  respect,  proof  by  circumstantial  evidence  is  analogous  to  the  indirect 
proof,  or  rcductio  ad  ahsurdum,  in  geometry :  in  each  case  the  truth  of  the 
proposition  is  attained  to  by  negativing  and  excluding  the  truth  of  any  other 
hypothesis  ;  in  the  one  case  to  a  metapliysical  and  absolute,  in  the  other 
to  a  moral  certainty.  In  another  and  essential  point  they  usually  differ  :  in  the 
geometrical  proof  the  exclusion  of  one  other  hypothesis  frequently  excludes  all 
others,  and  thus  at  once  establishes  the  truth  of  the  proposition;  in  the  case 
of  moral,  circumstantial  proofs  it  may  not  only  be  necessary  to  exclude  several 
different  liypothcsos  by  as  many  different  j)rocesscs  of  reasoning,  but  a  doubt 
may  still  exist  whether  some  other  hypothesis  may  not  remain  unanswered. 


CIRCUMSTANTIAL    EVIDENCE.  842 

a  number  of  the  circumstances  which  attended  a  disputed  fact  be 
known  and  ascertained,  and  those  so  coincide  and  agree  with  the  hy- 
pothesis that  the  disputed  fact  is  true,  that  no  other  hypothesis  can 
consist  with  those  circumstances,  the  truth  of  that  hypothesis  is 
necessarily  established. 

And  again,  where  the  known  and  ascertained  facts  so  coincide  and 
agree  with  the  hypothesis  that  the  disputed  fact  is  true,  as  to  render 
the  truth  of  any  other  hypothesis,  on  the  principles  of  reason  and 
experience,  exceedingly  remote  and  improbable,  and  morally,  though 
not  absolutely  and  metaphysically,  impossible,  the  hypothesis  is 
established  as  morally  true.  It  also  folloAVS,  that  if  any  of  the  estab- 
lished circumstances  be  absolutely  inconsistent  with  the  existence  of 
the  supposed  fact,  the  hypothesis  cannot  be  true,  notwithstanding 
the  degree  and  extent  of  coincidence  in  other  respects ;  for  if  that 
fact  really  existed,  it  was  necessarily  consistent  with  all  the  circum- 
stances. 

Thus,  in  the  first  place,  it  sometimes  happens  that  the  coincidence 
between  the  known  facts  and  the  hypothesis  is  such  as  absolutely  and 
demonstratively  to  exclude  any  other.  If,  for  instance,  it  were  to  be 
proved,  that  A.  B.  entered  a  room  containing  a  watch,  and  that  the 
watch  was  gone  upon  his  departure,  and  it  were  also  proved  that  no 
agent  but  A.  B.  in  the  interval  had  had  access  to  the  room,  the  proof 
that  A.  B.  took  the  watch  would  be  conclusive  and  complete:  for  the 
supposition  that  it  had  been  removed  by  any  other  agent  would  be 
entirely  excluded. 

In  the  next  place,  the  nature  and  degree  of  coincidence  between 
the  circumstances  and  the  hypothesis  may  oftentimes  *be 
sufficient  to  exclude  all  reasonable  doubt,  and  thus  generate  ^  -■ 
full  moral  conviction  and  belief,  although  it  be  not,  as  in  the  former 
case,  of  an  absolute  and  demonstrative  nature.  The  probability  of 
an  hypothesis  must  always  be  proportioned  to  the  nature^  extent 
and  number  of  its  coincidences  with  the  circumstances  proved.^ 

°  All  theories  which  explain  the  connection  between  natural  phenomena  and 
their  causes  are  of  this  description.  They  consist  in  showing  the  existence  and 
operation  of  a  cause,  and  its  adequacy  to  explain  the  phenomena ;  in  other 
words,  their  coincidence  with  the  hypothesis.  Evidence,  therefore,  of  the  truth 
of  any  such  theory  is  in  no  case  demonstrative,  although  it  reach  to  the  highest 
degree  of  moral  certainty.  The  most  splendid,  important,  and  beautiful  of  all 
philosophical  theories,  that  of  Sir  Isaac  Newton,  for  explaining  the  solar 
system,  as  exhibited  by  that  great  philosopher,  amounts  simply  to  this:  a  cause 
— viz.,  gravitation — exists.  It  is  matter  of  demonstrative  proof,  that  if  such  a 
cause  did  really  operate  upon  the  system,  it  would  produce  all  the  effects  or 


844  PROOFS — DUTY  OF  THE  JURY. 

*Connectlons  and  coincidences  between  circumstances  and 
*-  -^  the  hypothesis  which  they  tend  to  prove,  are  either  those  of 
a  natural  or  mechanical  nature,  which  are  the  objects  of  sense,  or 
they  are  of  a  moral  nature.  Those  of  the  first  class  may  consist 
generally  in  proximity  in  point  of  time  and  space,  and  all  other  cir- 
cumstances which  show  that  the  supposed  agent  had  the  means  and 
opportunity  of  doing  the  particular  act,  and  connect  him  witli  it. 
As  common  instances,  the  possession  of  stolen  goods,  in  case  of  rob- 
bery, and  stains  of  blood  upon  the  person,  the  possession  of  deadly 
weapons  recently  used,  marks  of  conflict  and  violence,  in  case  of 
homicide,  may  be  cited.  Happy  it  is  for  the  interests  of  society  that 
forcible  injuries  can  seldom  be  perpetrated  without  leaving  many  and 
plain  vestiges  by  which  the  guilty  agent  may  be  traced  and  detected. 
Instances  of  this  nature,  where  apparently  slight  and  unexpected 
circumstances  have  led  to  the  detection  of  oifenders,  are  familiar  to 

phenomena  which  are  actually  observed  ;  that  is,  the  supposed  cause  is  sufficient 
to  explain  all  the  phenomena.  Hence  it  is  inferred  to  be  true,  and  the  force  of 
this  inference  is  in  proportion  to  the  improbability  that  all  the  minute  coinci- 
dences between  the  phenomena  and  the  hypothesis  should  be  merely  fortuitous, 
and  that  they  should  have  resulted,  not  from  a  cause  known  to  exist,  and  which 
is  adequate  to  produce  them,  but  fi-om  some  other  cause  unobserved  and 
unknown.  To  a  certain  extent,  philosophical  proofs,  as  to  the  relations  of 
cause  and  effect  in  the  natural  woi'ld,  are  similar  to  circumstantial  judicial 
proofs  ;  in  each  case  the  basis  of  proof  consists  in  the  coincidences  proved  to 
exist  between  the  phenomena  or  circumstances  and  the  hypothesis.  Bayond 
this  point,  and  with  respect  to  the  effect  of  such  coincidences,  they  frequently 
differ  essentially.  The  philosophical  proof  rests  on  mere  coincidences,  indefinite 
in  point  of  number,  and  the  absence  of  any  other  cause  adequate  to  account 
for  the  phenomena;  but  the  agency  of  some  other,  but  unknown,  cause  can 
never  be  absolutely  excluded.  On  the  other  hand,  although  circumstantial 
proof  must  rest  on  a  limited  number  of  coincidences,  yet  their  nature  and  force 
are  frequently  such  as  to  wholly  to  exclude  the  truth  of  any  other  hypothesis. 
Lord  Coke,  as  an  instance  of  presumptive  judicial  belief,  supposes  the  case 
where  a  man  is  found  dead  in  a  house,  having  been  stabbed  with  a  sword,  and 
another  is  seen  coming  out  of  the  house  with  a  bloody  sword  in  his  hand,  no 
other  person  having  been  in  the  house.  Here  the  circumstances,  and 
consequently  the  coincidences,  are  few,  but  they  are  of  such  a  nature  as  wholly 
and  necessarily  to  exclude  any  but  one  hypothesis.  So,  in  the  ordinary  case  of 
larceny,  Avhere  stolen  goods,  recently  after  the  commission  of  the  felony,  are 
found  in  the  possession  of  the  prisoner,  who  gives  no  account  for  the  purpose 
of  explaining  that  possession;  although  the  coincidences  between  the  hypothesis 
that  he  was  the  thief,  and  the  circumstances,  be  but  two  in  number,  viz. :  his 
possession  of  the  property,  and  his  omission  to  account  for  that  possession,  yet 
the  latter  is  of  an  exclusive  nature  and  tendency ;  it  forcibly  tends  to  exclude 
any  supposition  of  an  honest  possession. 


CIRCUMSTANTIAL     EVIDENCE.  844 

all  who  are  concerned  in  tlie  practical  administratian  of  justice.  In 
a  case  of  burglary  the  thief  had  gained  admittance  to  the  liouse  by 
opening  a  window  by  means  of  a  penknife,  which  was  broken  in  the 
attempt,  and  part  Avas  left  in  the  wooden  frame :  the  broken  knife 
was  found  in  the  pocket  of  the  prisoner,  and  perfectly  corresponded 
with  the  fragment  left.  A  murder  had  been  committed  by  shooting 
the  deceased  with  a  pistol,  and  the  prisoner  was  connected  with  the 
transaction  by  proof  that  the  wadding  of  the  pistol  was  part  of  a 
*letter  belonging  to  the  prisoner,  the  remainder  of  which  r*o4c-| 
was  found  upon  his  person.'  In  another  case  of  murder, 
one  of  the  circumstances  to  prove  the  prisoner  to  have  been  the 
criminal  agent,  was  the  correspondence  of  a  patch  on  one  knee  of  his 
breeches  with  impressions  made  upon  the  soil  close  to  the  place  where 
the  murdered  body  lay.  In  a  case  of  robbery,  it  appeared  that  the 
prosecutor,  when  attacked,  had,  in  his  own  defence,  struck  the  rob- 
ber, with  a  key,  upon  the  face,  and  the  prisoner  bore  an  impression 
upon  his  face  which  corresponded  with  the  wards  of  the  key.  All 
circumstances  of  this  nature  are,  as  it  were,  mechanical  links  or  ties 
which  connect  the  supposed  agent  with  the  act  which  is  the  subject 
of  inquiry.  Further  observations  on  this  branch  of  the  subject  would 
be  superfluous,  and  inconsistent  with  the  object  of  the  present  Avork. 
There  are,  in  fact,  no  existing  relations,  natural  or  artificial,  no  oc- 
currences or  incidents  in  the  course  of  nature,  or  dealings  of  society, 
which  may  not  constitute  the  materials  of  proof,  and  become  impor- 
tant links  in  the  chain  of  evidence. 

Circumstances  of  the  above  description,  although  they  may  be  in 
themselves  of  an  imperfect  and  inconclusive  nature,  frequently  derive 
a  conclusive  tendency  from  those  which  are  of  a  moral  kind,  and 
which  depend  upon  a  knowledge  and  experience  of  a  man  as  a  rational 
and  moral  agent.  Experience  points  out  some  laws  of  human  con- 
duct almost  as  general  and  constant  in  their  operation  as  the  me- 
chanical laws  of  the  material  world  themselves  are.  That  a  man  will 
consult  his  own  preservation,  and  serve  his  own  interests ;  that  he 
will  prefer  pleasure  to  pain,  and  gain  to  loss ;  that  he  will  not  com- 
mit a  crime  or  any  other  act  manifestly  tending  to  endanger  his  per- 
son or  property,  without  a  motive;  and  conversely,  that  if  he  has 
done  such  an  act  he  had  a  motive  for  doing  it;  are  principles  of 
*action  and  of  conduct  so  clear  that  they  may  be  properly  r^oj/^-i 
regarded  as  axioms  in  the  theory  of  evidence. 

The  presumption  that  a  man  will  do  that  which  tends  to  his  obvious 

*  This  case  was  cited  by  the  Lord  Chancellor,  in  the  course  of  a  debate  in  the 
House  of  Lords,  1820. 


846  PROOFS^ — DUTY    OF    THE    JURY. 

advantage,  if  he  possesses  tlie  means,  supplies  a  most  important  test 
for  judging  of  the  comparative  weight  of  evidence.  It  is  to  be 
weighed  according  to  the  proof  which  it  was  in  the  power  of  one 
party  to  have  produced,  and  in  the  power  of  the  other  to  have  con- 
tradicted." 

If,  on  the  supposition  that  a  charge  or  claim  is  unfounded,  the 
party  against  whom  it  is  made  has  evidence  within  his  reach  by 
which  he  may  repel  that  which  is  offered  to  his  prejudice,  his  omis- 
sion to  do  so  supplies  a  strong  presumption  that  the  charge  or  claim 
is  well  founded  ;  it  would  be  contrary  to  every  principle  of  reason, 
and  to  all  experience  of  human  conduct,  to  form  any  other  conclu- 
sion. This  consideration  in  criminal  cases  frequently  gives  a  con- 
clusive character  to  circumstances  Avhich  would  otherwise  be  of  an 
imperfect  and  inconclusive  nature.^  Thus,  where  the  evidence  against 
a  prisoner  on  a  charge  of  larceny  consists  in  his  recent  possession  of 
stolen  property,  his  very  silence  as  to  the  fact  of  possession  raises  a 
strong  presumption  against  him  ;  for  if  his  possession  was  an  inno- 
cent one,  as  the  fact  must  necessarily  be  within  his  knoAvledge,  he 
might  show  by  statement  at  all  events,  if  not  by  proof,  that  such 
possession  was  consistent  with  his  innocence.  The  same  observations 
apply  in  general  where  appearances  are  proved  against  an  accused 
person,  which  he  refuses  to  account  for  or  explain  ;  such  as  marks  of 
blood  and  violence  on  his  dress  and  person,  the  possession  of  con- 
cealed weapons,  and  the  like. 

The  same  principle  applies  where  a  party,  having  more  certain 
r*84.71  ^'^^  satisfactory  evidence  in  his  power,  relies  upon  *that  which 
is  of  a  weaker  and  inferior  nature.  So  pregnant  with  suspi- 
cion is  conduct  of  this  nature,  that  the  law,  as  has  been  seen,  has 
laid  down  an  express  and  peremptory  rule  upon  the  subject,  which 
in  cases  within  the  scope  of  its  operation  actually  excludes  the  infe- 
rior evidence.  It  is  for  the  jury,  in  their  discretion,  to  apply  the 
principle,  in  cases  which  do  not  fall  within  the  defined  limits  of  the 
rule.  Although  a  party  may  not  be  ahvays  compellable  to  produce 
evidence  against  himself,  yet  if  it  be  proved  that  he  is  in  possession 
of  a  deed  or  other  evidence,  which,  if  produced,  would  decide  a 
disputed  point,  his  omission  to  produce  it  would  warrant  a  strong 
presumption  to  his  disadvantage.'^ 

"  See  Lord  Mansfield's  observations  in  TilatcJi  v.  Archer^  Cowp.  65. 

^  Notisi  chc  Ic  prove  iinpcrfettc  delle  quale  puo  il  reo  giustificarsi  e  non  lo 
faccia  dovere  divcngono  perfettc  :  Beccaria,  s.  14, 

""  Sec  Lord  Mansfield's  observations  in  Roc  dem.  Ilaldane  v.  Ilarcei/,  Burr. 
2484. 


CIRCUMSTANTIAL     EVIDENCE.  847 

Again,  the  maxim  of  law  is,  omnia  prcesumuntur  contra  spoUato- 
rem.'^  In  tlie  case  of  Uarivood  v.  Goodriglit/  it  was  found  by  a  spe- 
cial verdict  that  the  testator  made  his  will,  and  gave  the  premises  in 
question  to  the  plaintiff  in  error,  but  afterwards  made  another  will 
different  from  the  former,  but  in  what  particulars  did  not  appear; 
the  court  decided  that  the  devisee  under  the  first  will  was  entitled 
against  the  heir  at  law.  But  Lord  Mansfield  said,  that  in  case  the 
defendant  had  been  proved  to  have  destroyed  the  last  will,  it  would 
have  been  good  ground  for  the  jury  to  find  a  revocation.  And  as 
the  destruction  or  withholding  of  evidence  creates  a  presumption 
against  the  party  who  has  had  recourse  to  such  a  practice,  so  a  for- 
tiori does  the  actual  fabrication  or  corruption  of  evidence.'' 

^  Ibid.  y  Cowp.  87. 

^  See  ttie  judicious  remarks  of  Mr.  Evans  (2  Potliier,  by  Evans  337).  He 
justly  observes,  that  one  of  tlie  most  difficult  points  in  the  Douglas  cause  arose 
from  Sir  John  Stewart's  having  fabricated  several  letters  as  received  from  La 
Marre,  the  suri^oon  ;  and  cites  the  following  passage  from  Mr.  Stuart's  observa- 
tions on  the  subject : — 

"  I  have  been  accustomed  to  think,  that  in  judging  upon  evidence,  a  matter 
of  such  infinite  importance  in  the  constitution  and  jurisprudence  of  every  well- 
regulated  state,  there  were  certain  rules  established,  which  in  every  court,  and 
in  every  country,  were  received  as  most  invaluable  guides  for  the  discovery  of 
truth.  For  instance,  when  it  appeared  that  on  the  one  side  there  was  forgery 
and  fraud  in  some  material  parts  of  the  evidence,  and  especially  when  that 
forgery  could  be  traced  up  to  its  source,  and  discovered  to  be  the  contrivance  of 
the  very  person  whose  guilt  or  innocence  was  the  object  of  inquiry  ;  in  such  a 
case  I  have  always  understood  it  to  be  an  established  rule,  that  the  whole  of 
the  evidence  on  that  side  of  the  question  must  be  deeply  affected  by  a  deliberate 
falsehood  of  this  nature. 

"  The  natural  and  necessary  effect  of  such  a  practice  upon  the  minds  of 
judges  possessed  of  discernment  and  candor,  is  to  make  them  extremely  sus- 
picious of  all  the  evidence  tending  to  the  same  conclusion  with  the  forged  evi- 
dence. Parol  testimony  in  support  of  it  will  be  little  regarded  :  the  forgery  of 
the  written  evidence  contaminates  the  testimony  of  the  witnesses  in  favor  of 
the  party  who  has  made  use  of  that  forgery  ;  and  nothing  will  gain  credit  on 
that  side,  but  either  clear  and  conclusive  written  evidence,  free  from  suspicion, 
or  the  testimony  of  such  a  number  of  respectable,  disinterested,  and  consistent 
witnesses,  speaking  to  decisive  and  circumstantial  facts  as  leaves  no  room  to 
doubt  of  the  certainty  of  their  knowledge,  and  the  truth  of  their  assertions. 

"On  the  other  hand,  the  proof  of  a  forgery,  such  as  has  been  described,  must 
also  have  the  effect  to  gain  a  more  ready  admission  to  the  evidence  of  the  other 
party.  If  that  evidence  be  consistent,  if  it  be  established  by  the  concurring 
testimony  of  a  crowd  of  witnesses,  and  supported  by  various  articles  of  written 
and  unsuspected  evidence,  the  bias  of  a  fair  mind  will  be  totally  in  favor  of  the 
party  producing  such  authorities,  and  against  that  which  had  been  obliged  to 
have  recourse  to  the  forjj;cd  evidence." 


848  PROOFS — DUTY    OF    TUE    JURY. 

r*84.81  *The  discovery  of  sucli  practices  must  naturally  and  un- 
avoidably excite  a  considerable  degree  of  jealousy  and  sus- 
picion, and  ought  undoubtedly  to  be  most  seriously  -weighed  in  esti- 
mating the  degree  of  credit  to  be  attached  to  other  evidence  adduced 
by  the  same  party,  where  it  is  in  its  own  nature  doubtful  and  suspi- 
cious, or  is  rendered  so  by  conflicting  evidence.  A  considerable 
degree  of  caution  is  nevertheless  to  be  applied  in  cases  of  this  descrip- 
tion, more  especially  in  criminal  proceedings ;  for  experience  shows 
that  a  weak  but  innocent  man  will  sometimes,  when  appearances  are 
r*SJ.Q'l  ^g^'^st  him,  have  recourse  to  falsehood  *and  deception,  for 
the  purpose  of  manifesting  his  innocence^  and  insuring  his 
safety. 

The  connection  between  a  man's  conduct  and  his  motives  is  also 
one  of  a  moral  nature,  pointed  out  by  experience.  It  is  from  their 
experience  of  such  connections  that  juries  are  enabled  to  infer  a 
man's  motives  from  his  acts,  and  also  to  infer  what  his  conduct  was, 
from  the  motives  by  which  he  was  known  to  be  influenced.  In  crimi- 
nal cases,  proof  that  the  party  accused  was  influenced  by  a  strong 
motive  of  interest  to  commit  the  ofi"ence  proved  to  have  been  com- 
mitted, although  exceedingly  weak  and  inconclusive  in  itself,  and 
although  it  be  a  circumstance  which  ought  never  to  operate  in  proof 
of  the  corpus  delicti,  yet  when  that  has  once  been  established  aliunde, 
it  is  a  circumstance  to  be  considered  in  conjunction  with  others  which 
plainly  tend  to  implicate  the  accused.*' 

Again,  presumptions  of  great  importance,  especially  in  criminal 
proceedings,  arise  frequently  out  of  the  connection  between  the  acts 
of  a  party,  and  his  intentions,  consciousness  and  knowledge.  That 
a  rational  agent  must  be  taken  to  contemplate  and  intend  the  natural 
and  immediate  consequences  of  his  own  act,  is  a  presumption  so 
cojrent  as  to  constitute  rather  a  rule  of  law  than  of  mere  evidence." 
Again,  the  usual  connection  between  the  conduct  of  a  criminal  agent 
and  the  supposition  of  his  guilt,  are  of  too  obvious  a  nature  to  be 

^  Supra,  p.  59. 

•^  On  the  other  hand,  the  total  absence  of  any  apparent  motive  must  always 
operate  strongly  as  a  circumstance  in  favor  of  the  accused,  especially  where 
there  is  no  reason  to  apprehend  any  unsoundness  of  intellect.  AJor'tiori,  does 
the  principle  operate  where  the  supposed  aj^ent  was  actuated  by  contrary  mo- 
tives. And  even  in  cases  which  involve  a  conflict  of  motives,  such  as  infanti- 
cide, where  natural  feelinj^s  on  the  one  hand  are  opposed  to  a  desire  of  avoiding 
shame  and  detection  on  tiie  other,  the  former  are  necessarily  entitled  to  the 
highest  consideration. 

'  See  tit.  Intention,  Malice. 


CIRCUMSTANTIAL     EVIDENCE.  850 

dwelt  upon.  The  seeking  for  opportunities  fit  for  the  occa-  p^Q^^-, 
sion  ;  the  providing  *of  poison,  or  instruments  of  violence,  *-  -^ 
in  a  secret  and  clandestine  manner ;  the  subsequent  concealment  of 
them  ;  attempts  to  divert  the  course  of  inquiry,''  or  prevent  investi- 
gation as  to  the  cause  of  death,  not  unfrequently  excite  just  cause  of 
suspicion  :  above  all,  the  restless  anxiety  of  a  mind  conscious  of 
guilt  very  frequently  prompts  the  party  to  take  measures  for  his 
security  which  eventually  supply  the  strongest  evidence  of  his  crimi- 
nality. 

In  judicial  investigations,  as  well  as  in  the  ordinary  course  of  life, 
that  is  more  or  less  probable  and  likely,  and  is  therefore,  in  a  greater 
or  less  degree,  an  inducement  to  belief,  which  more  or  less  agrees 
with  former  observation.  This  is  a  ground  of  assent,  warranted  as 
well  by  philosophy  as  by  ordinary  experience.  It  is  probable  that 
whatever  has  happened  will  again  happen  under  similar  circum- 
stances, however  ignorant  we  may  be  of  the  nature  or  necessity  of 
the  connection  ;  the  very  frequency  of  the  association  is  evidence  of 
the  connection  ;  there  is  no  association  whatsoever,  whether  it  be  moral, 
natural  or  artificial,  Avhether  it  depend  on  the  nature  and  constitution 
of  the  human  mind,  the  laws  of  nature,  or  the  artificial  manners  and 
habits  of  society,  which  is  not  rendered  probable  in  proportion  to  the 
frequency  and  constancy  of  the  connection.  Hence  it  is,  that  where 
circumstances  found  to  be  usually  associated  with  the  fact  in  question 
are  known  to  exist,  such  associations  are  connecting  links  between 
the  known  circumstances  and  the  fact,  and  render  its  existence  more 
or  less  probable.®  On  the  other  hand,  *it  is  scarcely  neces-  |-^gr-,-, 
sary  to  remark,  that  experience  of  usual  or  constant  dis-  L  J 
union  of  particular  facts  and  circumstances,  necessarily  renders  their 
future  association  unlikely  and  improbable,  and  is  a  proper  induce- 
ment to  disbelief  more  or  less  strong  according  to  circumstances. 

*  I  have  remarked  that  persons  of  the  lowest  classes  of  society,  before  the  com- 
mission of  premeditated  murder,  not  unfrequently  throw  out  some  dark  and 
mysterious  hints  as  to  the  death  of  the  intended  victim.  This  is  a  circumstance 
which  I  apprehend  is  to  be  attributed  principally  to  an  expectation  that  by  this 
means  less  of  surprise  and  of  inquiry  will  take  place  when  the  crime  has  been 
accomplished. 

*  A  striking  instance,  to  show  the  extent  to  which  philosophical  inferences 
may  be  carried  by  means  of  careful  observation  and  analogical  reasoning,  may 
be  derived  from  the  science  of  comparative  anatomy.  From  a  single  fossil 
bone  of  an  animal,  whose  very  species  is  extinct,  a  skilful  anatomist  is  able 
to  represent  the  original  animal  perfect  in  all  its  parts;  see  Cuvier's  Fossil  Re- 
mains. 

49 


OOl  PROOFS  —  DUTY    OF    THE    JURY. 

It  is  further  to  be  remarked,  that  the  force  of  evidence  resulting 
from  the  concurrence  of  circumstances  depends  not  merely  upon  the 
degree  of  probability  that  tliose  coincidences  were  merely  casual  and 
fortuitous,  but  frequently  also  upon  that  improbability,  compounded 
with  the  further  improbability  that  another  hypothesis  is  true  which 
is  not  supported  by  any  circumstances.  Thus,  in  a  criminal  case, 
where  all  the  circumstances  of  time,  place,  motive,  means,  oppor- 
tunity and  conduct,  concur  in  pointing  out  the  accused  as  the  per- 
petrator of  an  act  of  violence,  the  force  of  such  circumstantial  evi- 
dence is  materially  strengthened  by  the  total  absence  of  any  trace 
or  vestige  of  any  other  agent,  although  had  any  other  existed,  he 
must  have  been  connected  with  the  perpetration  of  the  crime  by 
motive,  means  and  opportunity,  and  by  circumstances  necessarily 
accompanying  such  acts,  which  usually  leave  manifest  traces  behind 
them. 

In  estimating  the  force  of  a  number  of  circumstances  tending  to 
the  proof  of  the  disputed  fact,  it  is  of  essential  importance  to  con- 
sider whether  they  be  dependent  or  independent.  If  the  facts  A,  B, 
C,  D,  be  so  essential  to  the  particular  inferences  to  be  derived  from 
them,  when  established,  that  the  failure  in  the  proof  of  any  one  would 
destroy  the  inference  altogether,  they  are  dependent  facts;  if,  on  the 
other  hand,  notwithstanding  the  failure  in  proof  of  one  or  more  of 
those  facts,  the  rest  would  still  afford  the  same  inference  or  probability 
as  to  the  contested  fact  which  they  did  before,  they  *would 
L  '^■^  be  properly  termed  independent  facts. ^  The  force  of  a  parti- 
cular inference  drawn  from  a  number  of  dependent  facts  is  not  aug- 
mented, neither  is  it  diminished,  in  respect  of  the  number  of  such 
independent  facts,  provided  they  be  established  ;  but  the  probability 
that  the  inference  itself  rests  upon  sure  grounds,  is,  in  general, 
weakened  by  the  multiplication  of  the  number  of  circumstances 
essential  to  the  proof;  for  the  greater  the  number  of  circumstances 
essential  to  the  proof  is,  the  greater  latitude  is  there  for  mistake  or 
deception.  On  the  other  hand,  where  each  of  a  number  of  independ- 
ent circumstances,  or  combinations  of  circumstances,  tends  to  the 
same  conclusion,  the  probability  of  the  truth  of  the  fact  is  necessarily 

''  Quando  le  prove  di  un  fatto  tuttc  dipendono  egaaliuente  da  una  sola,  il  nu- 
mero  dellcprove  non  auinentc  ne  sininuisco  la  probabilitil  del  fatto,  perche  tutto 
il  loro  valore  si  resolve  nel  valorc  di  quclla  sola  da  ciii  dipendono.  Quando  le 
prove  sono  indipendenti,  I'una  dall'  altra,  cioe  quando  gli  indixi  si  provana  al- 
trondc  clie  da  so  stessi,  quanto  maggiori  prove  si  adducono  tanto  piCi  cresce  la 
probabilita  del  fatto,  perche  la  fallacia  di  una  prova  non  influisce  suU'  altra: 
Beocaria,  s.  14. 


CIRCUMSTANTIAL     EVIDENCE.  852 

greatly  increased  in  proportion  to  the  number  of  tliose  independent 
circumstances.^ 

It  seems  to  have  been  considered,  that  even  mere  coincidences, 
although  not  of  an  exclusive  nature,  may  by  their  number  and  joint 
operation  be  sufficient  to  constitute  a  conclusive  proof.''  It  rarely 
however  happens  *in  practice,  tiiat  circumstantial  proofs  con-  r:«or  --i 
sist  purely  in  mere  natural  and  mechanical  coincidences, 
unconnected  with  any  of  a  moral  nature  and  conclusive  tendency. 

The  probability  derived  from  the  concurrence  of  a  number  of 
independent  probabilities  increases  not  in  a  merely  cumulative,  but 
in  a  compound  and  multiplied  proportion.'     This   is   a    consequence 

^  Infra,  note  [i). 

^  Matthaeus  de  Grim.  :  Possuni  diversa  genera  ita  covjungi  ut  quce  singula  non 
nocerent  ea  universa  tanquam  grando  reum  opprimunt. — According  to  Beccaria, 
chap.  14 :  Possono  distinguersi  le  prove  di  un  reato  in  perfette  ed  in  imperfette. 
Chiamo  perfette  quelle  che  escludono  la  possibilit{\  che  un  tale  non  sia  reo  ;  chiamo 
imperfette  quelle  che  non  la  escludono.  Delia  prima  anche  una  sola  e  sufficiente 
per  la  condanna,  delle  seconde  tante  son  necessarie  quante  bastino  a  formarne 
una  perfetta,  vale  a  dire  que  se  per  ciascuna  di  queste  in  particolare  h  possibile 
che  uno  non  sia  reo,  per  I'unione  loro  nel  medesimo  soggetto  e  impossibile  che 
non  lo  sia:  Beccaria,  s.  14. — Singula  levia  sunt  ct  communia,  universa  vero  no- 
cent  etiam  si  non  ut  fulmine,  tamen  ut  grandine :  Quinctil. 

'  According  to  the  principles  of  pure  abstract  mathematical  reasoning,  the  pro- 
bability arising  from  the  concurrence  of  a  number  of  independent  circumstances, 
each  of  which  induces  a  pi'obability  in  favor  of  a  particular  event,  is  compounded 
of  all  the  probabilities  incident  to  the  individual  circumstances.  When,  therefore 
the  circumstantial  probabilities  are  each  considerable,  the  compound  probability 
in  favor  of  the  event  increases  by  a  rapid  progression.    If  the  circumstances,  J 

a  b  c 
B,  C,  severally  induce  probabilities  in  favor  of  an  event  represented  by 

m  m  in, 
that  is,  if  in  every  m  cases  the  circumstance  A  necessarily  involved  the  event  in 

question  a  times,  and  excluded  it  m — a  times,  and  so  on,  and  the  circumstances 
A,  B,  C,  were  wholly  independent  of  each  other,  then  the  probability  of  the 
event,  arising  from  the  happening  of  all  these  circumstances,  would  be  to  the 
probability  against  it  as  m^—m — a  .  m — h  .  m — c  to  m — a  .  m — h  .  m — c.     * 

If  the  witnesses.  A,  B,  C,  bore  testimony  to  independent  facts,  each  of  which 
if  true,  involved  the  truth  of  a  particular  event,  and  A  were  the  witness  of  truth 
in  a  cases,  and  his  testimony  were  false  in  m — a  cases,  and  so  of  the  testimony 
of  5,  and  of  C,  then  the  probability  of  the  event,  arising  from  their  joint  testi- 
mony, would  be  to  the  probability  against  it  in  the  ratio  above  expressed. 

And  if  m=2  and  a^b=c='[,  the  probability  in  favor  of  the  event  would  be  to 
the  probability  against  it  as  7  :  1. 

Again,  if  the  probability  in  favor  of  a  particular  fact,  arising  from  the  testi- 
mony of  A,  were  to  the  probability  against  it  as  a  :  m — a,  and  so  on,  as  to  the 
testimony  of  B  and  C,  the  probability  of  the  fact  from  their  united  testimony 


854  PROOFS  —  DUTY    OF    THE    JURY. 

r*f<''4.1    *^6rived   from   pure   abstract   *aritlimetical   principles.     For 
altboufrh  no   definite   arithmetical  ratio   can  be  assigned  to 

would  he  to  the  prohahility  against  it  as  a  6  c  to  m — a.  m — h.  m — c.  And  if 
m=^2  and  a=6=c=l,  the  ratio  would  he  that  of  1  : 1  ;  that  is  their  united  testi- 
mony would  produce  no  increase  of  probability  in  favor  of  the  fact. 

Such  considerations  admit  but  of  a  very  partial  and  limited  application  in  the 
investigation  of  questions  arising  out  of  the  common  concerns  of  life.  The  basis 
of  all  such  calculations  is  a  comparison  of  all  the  diiferent  cases  which  involve 
the  particular  event  with  those  which  exclude  it,  which  assumes  the  possibility 
of  resolving  all  possible  cases,  which  either  involve  or  exclude  the  event,  into  a 
definite  number  of  the  one  class  and  of  the  other,  each  of  which  is  equally  likely 
to  happen.  (Wood's  Algebra.  Laplace,  Theorie  Analitique  des  Probabilit^s.) 
The  most  complicated  and  labored  analytical  results  on  the  subject  of  probabili- 
ties, are  little  more  than  modifications  of  this  comparison.  It  is  obvious,  upon 
the  slightest  consideration,  that  the  probability  of  error  or  mistake  on  the  part 
of  a  witness,  or  of  his  honesty  and  sincerity,  usually  admits  of  no  such  com- 
parison ;  still  less  can  the  complicated  transactions  of  life,  dependent  as  they  are 
upon  an  almost  infinite  variety  of  circumstances  and  motives,  be  subjected  to 
such  an  analysis.  But  the  principle  may  no  doubt  operate  by  way  of  approxi- 
mation, although  the  concurrent  probabilities  may  admit  of  no  numerical  mea- 
sure ;  and  whenever  probabilities  are  deducible  from  independent  circumstan- 
ces, the  degree  of  probability  must  necessarily  be  multiplied  by  their  concur- 
rence. In  criminal  cases,  however,  it  seems  to  be  perfectly  clear  in  principle 
that  the  conjoint  effect  of  circumstances,  which  individually  are  inconclusive  in 
their  nature,  cannot  in  its  nature  be  conclusive,  unless  the  resulting  probability 
be  indefinite,  and  exceed  the  powers  of  calculation.  Where  mere  independent 
and  unconnected  circumstances  are  in  their  nature  imperfect  and  inconclusive, 
the  degree  of  probability  which  results  from  their  united  operation,  although 
greatly  increased  in  degree,  must  still  in  its  nature  be  definite  and  inconclusive, 
and  therefore  inadequate  to  the  pui-poses  of  conviction.  Let  it,  for  instance,  be 
supposed  that  A  is  robbed,  and  that  the  contents  of  his  purse  were  one  penny, 
two  sixpences,  three  shillings,  four  half-crowns,  five  crowns,  six  half-sovereigns, 
and  seven  sovereigns,  and  that  a  person,  apprehended  in  the  same  fair  or  market 
where  the  robbery  takes  place,  is  found  in  possession  of  the  same  remarkable 
combination  of  coin,  and  of  no  other,  but  that  no  part  of  the  coin  can  be  identi- 
fied, and  that  no  circumstances  operate  against  the  prisoner  except  his  possession 
of  the  same  combination  of  coin  :  here  notwithstanding  the  very  extraordinary 
coincidences  as  to  the  number  of  each  individual  kind  of  coin,  although  the  cir- 
cumstances raise  a  high  probability  of  identity,  yet  it  still  is  one  of  an  indefinite 
and  inconclusive  nature. 

On  the  other  hand,  evidence  of  a  conclusive  nature  and  tendency  is  restricted 
by  DO  limits  of  mere  probability.  In  the  case  of  the  ordinary  presumption  that 
an  admission  of  a  fact  made  hy  a  party  contrary  to  his  obvious  interest  is  truly 
made,  the  prolnibility  that  the  admission  is  true  far  exceeds  the  limits  of  mere 
numerical  comi)arison.  In  some  instances  mere  mechanical  coincidences  are  of 
this  description.  Thus,  in  the  ordinary  case,  where  cloth  is  cut  and  stolen  from 
a  loom,  the  perfect  coincidence  between  cloth  found  in  the  possession  of  the  pri- 
soner and  the  remnant  left  behind,  is  of  this  description  ;  the  probability  of  iden- 


CIRCUMSTANTIAL    EVIDENCE.  855 

each  independent  probability,  *jet  the  principle  of  increase  r*orr-] 
must  obtain  wherever  independent  probabilities  in  favor  of 
an  event  concur,  although  they  cannot  be  precisely  measured  by 
space  or  numbers ;  and  even  although  every  distinct  probability 
which  is  of  a  conclusive  tendency  exceeds  every  merely  definite 
numerical  ratio. 

It  is  nevertheless  to  be  remarked,  that  wherever  mere  inconclusive 
probabilities  concur,  the  result,  however  the  degree  of  probability 
may  be  increased  by  the  union,  will  still  be  of  an  indefinite  and  in- 
conclusive nature.  And  hence  it  seems,  that  in  criminal  cases  the 
mere  union  of  a  limited  number  of  independent  circumstances,  each 
of  which  is  of  an  imperfect  and  inconclusive  nature,  cannot  afford  a 
just  ground  for  conviction. 

On  the  other  hand,  the  force  of  circumstances  of  a  conclusive 
nature  may  be  greatly  confirmed  and  strengthened  by  their  combi- 
nation with  other  and  independent  circumstances,  which  render  the 
fact  probable,  although  the  ^latter  be  in  themselves  of  an  r*QC£'-| 
imperfect  and  inconclusive  nature.  Again,  it  is  to  be  observed, 
that  although  in  the  course  of  judicial  proofs  the  number  of  concur- 
ring probabilities  is  usually  limited,  yet  that  cases  may  be  put  where 
the  number  and  extent  of  the  coincidences  are  so  great  as  to  exceed 
all  definite  limits,  and  where,  consequently,  the  resulting  probability 
is  of  a  conclusive  nature.-* 

It  is  to  be  remarked,  that  in  thus  referring  to  the  doctrine  of 
numerical  probabilities,  it  is  the  principle  alone  which  is  intended 
to  be  applied,  in  order  that  some  estimate  may  be  formed  of  the 
force  of  independent  and  concurring  probabilities.  The  notions  of 
those  who  have  supposed  that  mere  moral  probabilities  or  relations 

tity  ai'ising  from  the  perfect  coincidence  of  the  severed  threads  exceeds  the  bounds 
of  arithmetical  calculation,  and  deprives  the  mind  of  all  power  of  attributing 
such  a  series  of  coincidences  to  mere  accident. 

But  even  in  criminal  cases,  where  a  high  degree  of  probability  results  from 
repeated  coincidences,  although  that  probability  be  of  a  definite  and  numerical 
nature,  such  coincidences  may,  in  conjunction  with  others,  constitute  a  com- 
plete and  satisfactory  proof.  Thus,  in  the  case  already  supposed,  of  a  singular 
coincidence  between  the  quantity  and  description  of  coin  stolen  with  that  found 
in  the  possession  of  the  prisoner,  although  the  fact,  taken  nakedly  and  alone, 
without  any  collateral  evidence,  would  in  principle  be  inconclusive,  yet,  if 
coupled  with  circumstances  of  a  conclusive  tendency,  such  as  flight,  conceal- 
ment of  the  money,  false  and  fabricated  statements  as  to  the  possession,  it 
might  afford  strong  and  pregnant  evidence  of  guilt  for  the  consideration  of  the 

J  See  the  preceding  note. 


856  PROOFS — DUTY    OF    THE    JURY. 

could  ever  be  represented  by  numbers  or  space,  and  thus  be  sub- 
jected to  arithmetical  analysis,  cannot  but  be  regarded  as  visionary 
and  chimerical. 

From  this  short  view  of  the  subject,  it  appears  to  be  essential  to 
circumstantial  proof.  First,  that  the  circumstances  from  which  the 
conclusion  is  drawyi  he  fully  established.  If  the  basis  be  unsound, 
the  superstructure  cannot  be  secure.  The  party  upon  whom  the 
burthen  of  proof  rests  is  bound  to  prove  every  single  circumstance 
which  is  essential  to  the  conclusion,  in  the  same  manner  and  to  the 
same  extent  as  if  the  whole  issue  had  rested  upon  the  proof  of  each 
individual  and  essential  circumstance.  It  is  obvious  that  proof  of 
this  nature  is  more  strono;  and  cogent  where  the  circumstances  are 
numerous,  and  derived  from  many  different  and  independent  sources, 
than  where  they  are  but  few,  and  depend  on  the  credit  and  testimony 
of  one  or  two  Avitnesses.  Where  all  the  circumstances  rest  on  the 
testimony  of  a  single  witness,  the  evidence  can  never  be  superior  to 
the  lowest  degree  of  direct  evidence,  and  must  frequently  fall  below 
it :  for  in  addition  to  the  question,  whether  the  witness  was  trust- 
p:j;orrT-|  worthy,  *another  question  would  arise;  that  is,  whether  the 
inference  was  correctly  draAvn  from  the  facts  which  he  was 
supposed  to  prove. 

It  is  obvious  that  the  number  of  circumstances  stated  by  a  witness 
does  not  add  to  the  force  of  his  direct  testimony,  unless  they  be  such 
as  admit  of  contradiction  if  his  testimony  be  false. 

The  number  of  circumstances  is  not  essential,  inasmuch  as  it  repels 
any  suspicion  of  fraud,  but  from  the  consideration  that  the  greater 
the  number  of  circumstances  is,  the  greater  will  be  the  certainty  as 
to  the  conclusion  deduced.  A  few  circumstances  may  be  consistent 
with  several  solutions  ;  but  the  whole  context  of  circumstances  can 
consist  with  one  hypothesis  only ;  and  the  wider  the  range  of  circum- 
stances is,  the  more  certain  will  it  be  that  the  hypothesis  which  con- 
sists with,  and  reconciles  them  all,  is  the  true  one. 

Although  all  facts  and  circumstances  connected  with  the  subject 
of  inquiry  be  admissible  in  evidence  to  explain  its  nature,  and  although 
all  facts  must  necessarily  be  consistent  with  truth,  yet  it  is  to  be  recol- 
lected, that  facts  themselves  may  be  simulated  and  fabricated  with  a 
view  to  deceive  and  mislead.  Such  facts,  however,  are  necessarily 
exposed  to  great  danger  of  detection,  from  the  obvious  difficulty  of 
uniting  by  artful  means  that  which  is  false  with  that  which  is  genuine, 
and  thus  substituting  a  false  and  artificial  for  a  real  consistency  and 
context  of  circumstances. 


CIRCUMSTANTIAL     EVIDENCE.  857 

The  great  difficulty  of  practising  frauds  of  this  description,  and 
their  liability  to  detection  from  a  careful  examination  and  compari- 
son of  circumstances,  will  be  best  elucidated  by  a  few  examples. 
Attempts  at  this  kind  of  deception  have  not  unfrequently  been  made 
with  a  view  to  conceal  the  crime  of  murder,  and  in  order  to  produce 
belief  that  the  party  died  from  natural  or  accidental  causes,  or  was 
felo  de  se  :  in  the  detection  of  such  *impostures  the  testimony 
of  medical  practitioners  cannot  be  too  highly  appreciated.  L         J 

The  remarkable  case  of  Sir  Edmundbury  Godfrey  may  be  cited  as 
an  instance  of  this  kind.''  The  deceased  was  found  in  a  ditch  at 
Chalk  Farm,  in  the  neighborhood  of  London,  his  own  sword  passing 
through  his  body,  so  that  the  ends  projected  two  hands'  bretidth  be- 
hind his  back  ;  his  gloves  and  some  other  things  were  laid  on  the 
bank  so  as  to  excite  a  belief  that  he  had  destroyed  himself.  But 
there  was  no  blood  about  the  place,  and  upon  drawing  the  sword  out 
of  the  body  no  blood  followed.  The  body  was  discolored  and  bruised, 
and  the  neck  so  flexible  that  the  chin  could  be  turned  from  one 
shoulder  to  the  other.     The  deceased  had  in  fact  been  strangled. 

In  the  State  Trials  a  very  singular  case  of  the  same  description  is 
also  mentioned,  of  a  woman  who  was  found  in  bed  with  her  throat  cut : 
her  husband's  relations  (the  husband  being  absent  from  home  at  the 
time)  occupied  the  apartment  adjoining  to  the  chamber  of  the  deceased, 
and  there  was  no  access  to  her  chamber  but  through  their  apartment. 
The  relations,  who  thus  occupied  the  adjoining  apartment,  had  ar- 
ranged matters  so  that  it  might  be  supposed  that  the  deceased  had 
destroyed  herself;  but  one  circumstance  amongst  others  w^as  conclu- 
sive to  destroy  this  supposition,  for  on  the  left  hand  of  the  deceased 
was  observed  the  bloody  mark  of  a  left  hand,  which  of  course  could 
not  have  been  that  of  the  deceased. 

Another  instance,  cited  in  an  able  work  on  Medical  Jurisprudence,^ 
is  to  this  effect : — A  citizen  of  Liege  was  found  shot,  and  his  own 
pistol  was  discovered  lying  near  him,  and  no  person  had  been  seen  to 
enter  or  to  leave  the  house  of  the  deceased  ;  from  these  circumstances 

it  was  concluded  that  he  had  destroyed  himself,  but  on  *ex- 

r*8591 
amining  the  ball  by  which  he  had  been  killed  it  was  found  to    ^  -^ 

be  too  large  to  have  been  discharged  from  that  pistol,  in  consequence 

of  which  suspicion  fell  upon  the  real  murderer. 

Secondly  :  It  is  essential  that  all  the  facts  should  be  consistent  with 

"  7  How.  St.  Tr.  159. 

'  By  Dr.  Paris  and  J.  S.  M.  Fonblanque ;  see  also  the  publications  on  the 
same  subject,  by  Dr.  Smith,  Dr.  Male,  and  Dr.  Taylor. 


859  PROOFS — DUTY    OF    THE    JURY. 

the  hyjjothesis.  For,  as  all  things  whicli  have  happened  were  necessa- 
rily congruous  and  consistent,  it  follows,  that  if  any  one  established 
fact  be  wholly  irreconcilable  with  the  hypothesis,  the  latter  cannot  be 
true.  Such  an  incongruity  and  inconsistency  is  sufficient  to  negative 
the  hypothesis,  even  although  it  coincide  and  agree  with  all  the  other 
facts  and  circumstances  of  the  case  to  the  minutest  extent.  Undoubt- 
edly such  an  intimate  coincidence  in  other  respects  would  suggest  the 
necessity  of  investigating  the  truth  of  the  incongruous  circumstances 
with  great  caution  ;  yet  if  the  incongruity  could  not  eventually  be 
removed,  the  hypothesis  would  fall,  although  no  other  could  be  sug- 
gested.'" 

Thirdly  :  It  is  essential  that  the  circumstances  should  he  of  a  conclu- 
sive nature  and  tendency.  Evidence  is  always  indefinite  and  incon- 
clusive, when  it  raises  no  more  than  a  limited  probability  in  favor  of 
the  fact,  as  compared  with  some  definite  probability  against  it, 
whether  the  precise  proposition  can  or  cannot  be  ascertained.  It  is, 
on  the  other  hand,  of  a  conclusive  nature  and  tendency,  when  the 
probability  in  favor  of  the  hypothesis  exceeds  all  arithmetical  or 
definite  limits. 

Such  evidence  is  always  insufficient,  where,  assuming  all  to  be 
proved  Avhich  the  evidence  tends  to  prove,  some  other  hypothesis  may 
still  be  true  ;  for  it  is  the  actual  *exclusion  of  every  hypo- 
L  J  thesis  which  invests  mere  circumstances  with  the  force  of 
proof.  Whenever,  therefore,  the  evidence  leaves  it  indifferent  which 
of  several  hypotheses  is  true,  or  merely  establishes  some  finite  pro- 
bability in  favor  of  one  hypothesis  rather  than  another,  such  evi- 
dence cannot  amount  to  proof,  however  great  the  probability  may  be. 
To  hold  that  any  finite  degree  of  probability  shall  constitute  proof 
adequate  to  the  conviction  of  an  offender,  would  in  reality  be  to  assert, 
that  out  of  some  finite  number  of  persons  accused,  an  innocent  man 
should  be  sacrificed  for  the  sake  of  punishing  the  rest ;  a  proposition 
which  is  as  inconsistent  with  the  humane  spirit  of  our  law  as  it  is  with 
the  suggestions  of  reason  and  justice.  The  maxim  of  law  is,  that  it 
is  better  that  ninety-nine  (/.  e.  an  indefinite  number  of)  offenders 
should  escape,  than  that  one  innocent  man  should  be  condemned. 

"  It  was  on  this  principle  that  the  French  philosophers  opposed  Newton's 
system  of  the  world.  They  objected  that  the  calculations  formed  upon  the 
hypothesis  made  the  motion  of  the  moon's  apsides  but  one-half  as  great  as  they 
were  proved  to  be  by  actual  observation.  It  was  afterwards  discovered  that 
the  error  was  in  nej;lcctinf;;  a  tangential  force  in  the  calculation  ;  and  it  was 
found  that,  when  this  was  taken  into  the  account,  the  theoretical  result  coincided 
with  the  fact. 


CIRCUMSTANTIAL    EVIDENCE.  860 

Thus,  in  practice,  wliere  it  is  certain  that  one  of  two  individuals 
committed  the  offence  charged,  but  it  is  uncertain  whether  the  one. 
or  the  other  was  the  guilty  agent,  neither  of  them  can  be  con- 
victed. 

The  principle  extends  to  all  cases  where  the  ultimate  tendency  of 
the  evidence  is  of  an  inconclusive  nature ;  that  is,  where  admitting 
all  to  be  proved  Avhich  the  evidence  tends  to  prove,  the  guilt  of  the 
accused  would  be  left  either  wholly  uncertain  or  dependent  upon  some 
merely  definite  probability." 

*It  is  very  possible,  indeed,  that  mere  coincidences  may 
be  so  numerous,  as  by  force  of  multiplied  probability  to  ex-  ^  J 
elude  all  reasonable  doubt ;  but  this  can  never  happen  in  the  absence 
of  circumstances  of  a  conclusive  tendency,  unless  the  probability  be 
increased  to  an  indefinite  extent  beyond  the  reach  of  mere  calcula- 
tion. Whenever  the  probability  is  of  a  definite  and  limited  nature 
(whether  in  the  proportion  of  one  hundred  to  one,  or  of  one  thousand 
to  one,  or  any  other  ratio,  is  immaterial),  it  cannot  be  safely  made 
the  ground  of  conviction  ;  for  to  act  upon  it  in  any  case  would  be  to 
decide  that,  for  the  sake  of  convicting  many  criminals,  the  life  of  one 
innocent  man  might  be  sacrificed. 

The  distinction  between  evidence  of  a  conclusive  tendency  which 
is  sufficient  for  this  purpose,  and  that  which  is  inconclusive,  seems  to 
be  this :  the  latter  is  limited  and  concluded  by  some  degree  or  other 
of  finite  probability,  beyond  which  it  cannot  go;  the  former,  though 
not  demonstrative,  is  attended  with  a  degree  of  probability  of  an 
indefinite  and  unlimited  nature. 

°  The  very  remarkable  case  of  Mr.  Barnard,  who  was  tried  on  a  charge  of 
sending  a  threatening  letter  to  the  Duke  of  Marlborough,  affords  an  illustra- 
tion of  these  positions.  The  duke  was  twice  required,  by  letter,  to  meet  the 
writer,  and  on  both  occasions  was  met  by  the  prisoner  :  the  one  place  of  as- 
signation was  near  a  particular  tree  in  Hyde  Park ;  the  other,  in  an  aisle  of 
Westminster  Abbey.  That  Mr.  Barnard  should,  by  mere  accident,  have  been 
at  both  places  at  the  very  time  appointed  for  the  meetings  was  certainly  most 
remarkable :  yet,  notwithstanding  the  strong  degree  of  suspicion  created  by 
such  coincidences,  they  were  clearly  insufficient,  without  more,  to  warrant  a 
conviction.  The  prisoner  was,  nevertheless,  put  upon  his  defence,  and  jjroduced 
evidence  to  show  that  those  coincidences  were  purely  accidental.  Perhaps  the 
real  clue  to  the  transaction  may  be  this,  that  the  prisoner  was  a  party  to  the 
transaction,  although  no  real  intention  existed  of  profiting  by  the  contrivance. 
The  rank  and  situation  of  the  prisoner  in  society,  and  the  obvious  impossibility 
of  his  ever  enjoying  that  which  he  demanded,  are  circumstances  strongly  tend- 
ing to  exclude  such  a  supposition,  and  the  nature  and  style  of  the  demand 
render  it  probable  that  the  real  object  of  the  writer  was  not  personal  gain. 


861  PROOFS — DUTY    OF    THE    JURY. 

It  frequently  happens,  as  Las  been  seen,  thatwbere  the  evidence  of 
the  circumstances  attending  the  transaction  itself  would  be  imperfect 
and  inconclusive,  it  derives  a  conclusive  nature  and  tendency  from  a 
consideration  of  the  conduct  of  the  accused.  The  ordinary  motives 
of  self-preservation  and  self-interest,  common  to  all  mankind,  furnish 
the  strongest  presumption  that  a  party  would  explain,  by  statement 
at  all  events,  and  by  proof  where  *it  was  practicable,  such 
•-  "-'  evidence  as  tended  to  his  prejudice.  Hence  it  is  that  circum- 
stances, which  abstractedly  considered  would  be  inconclusive,  acquire 
a  conclusive  character  and  tendency,  from  the  silence  of  the  adversary, 
or  his  failure  in  attempting  to  explain  them." 

Where  the  evidence  to  prove  larceny  consists  in  the  recent  posses- 
sion of  the  stolen  property,  it  is  in  itself  imperfect  and  inconclusive. 
But  if  the  evidence  of  possession  be  coupled  with  the  consideration 
that  the  party  charged,  having  it  in  his  power  to  account  for  the  pos- 
session, if  it  really  consist  with  his  innocence,  either  refuses  to  account 
for  the  possession  or  attempts  to  impose  a  false  account,  the  evidence 
is  then  conclusive  in  its  nature  and  tendency,  and  is  proper  for  the 
consideration  of  the  jury. 

Fourthly  :  It  is  essential  that  the  circumstances  should,  to  a  moral 
certainty^  actually  exclude  every  hypothesis  hut  the  one  proposed  to  he 
•proved.^ 

Hence  results  the  rule  in  criminal  cases,  that  the  coincidence  of 
circumstances  to  indicate  guilt,  however  strong  and  numerous  they 
may  be,  avails  nothing  unless  the  corpus  delicti,  the  fact  that  the 
crime  has  been  actually  perpetrated,  be  first  established.  So  long 
as  >the  least  doubt  exists  as  to  the  act,  there  can  be  no  certainty 
as  to  the  criminal  agent.  Hence,  upon  charges  of  homicide  it  is  an 
established  rule  that  the  accused  shall  not  be  convicted  unless  the 
death  be  first  distinctly  proved,  either  by  direct  evidence  of  the  fact 
or  by  inspection  of  the  body :  a  rule  warranted  by  melancholy  expe- 
rience of  the  conviction  and  execution  of  supposed  offenders,  charged 
with  the  murder  of  persons  who  survived  their  alleged  murderers;  as 
in  the  case  of  the  uncle  already  alluded  to,  cited  by  Sir  Edward 
Coke  and  Lord  Hale.  So,  Lord  Ilalc  recommends  that  no  prisoner 
shall  be  convicted  of  larceny  in  stealing  the  goods  of  a  person  un- 
known, unless  the  fact  of  the  robbery  be  previously  *proved.i 
•-  ^  The  same  principle  requires  that  upon  a  charge  of  homicide, 
even  when  the  body  has  been  found,  and  although  indications  of  a 

"  Supra,  p.  845.  p  Hedge's  case,  2  Lew,  C.  C.  227. 

1  See  tit.  Larceny. 


CIRCUMSTANTIAL     EVIDENCE.  863 

violent  death  be  manifest,  that  it  shall  still  be  fully  and  satisfactorily 
proved  that  the  death  was  neither  occasioned  by  natural  causes,' 
by  accident,  nor  by  the  act  of  the  deceased  himself.  In  considering 
the  probability  of  the  latter  supposition,  it  is  to  be  recollected  that 
it  is  by  no  means  improbable  that  a  person  bent  on  self-destruction 
would  use  precautions  to  protect  his  memory  from  ignominy,  and 
his  property  from  the  forfeiture,  consequent  on  a  verdict  of  felo 
de  se.^ 

The  force  of  circumstantial  evidence  being  exclusive  in  its  nature 
and  the  mere  coincidence  of  the  hypothesis  with  the  circumstances 
being  in  the  abstract  insufficient,  unless  they  exclude  every  other 
supposition,  it  is  essential  to  inquire,  with  the  most  scrupulous  atten- 
tion, what  other  hypothesis  there  may  be  which  may  agree  wholly 
or  partially  with  the  facts  in  evidence.  Those  which  agree  even 
partially  with  the  circumstances  are  not  unworthy  of  examination, 
because  they  lead  to  a  more  minute  examination  of  those  facts  Avith 
which  at  first  they  might  *appear  to  be  inconsistent;  and  it 
is  possible  that  upon  a  more  minute  investigation  of  those  ^  J 
facts  their  authenticity  may  be  rendered  doubtful,  or  may  be  even 
altogether  disproved.  In  criminal  cases  the  statement  made  by  the 
accused  is  in  this  point  of  view  of  the  most  essential  importance. 
Such  is  the  complexity  of  human  affairs,  so  infinite  the  combinations 
of  circumstances,  that  the  true  hypothesis  which  is  capable  of  ex- 
plaining and  reconciling  all  the  apparently  conflicting  circumstances 
of  the  case,  may  escape  the  acutest  penetration;  but  the  prisoner, 
so  far  as  he  alone  is  concerned,  can  always  afford  a  clue  to  them ; 
and  though  he  be  unable  to  support  his  statement  by  evidence, 
his  account  of  the  transaction  is  for  this  purpose  always  most  mate- 

^  See  the  trial  of  Spencer  Cowper,  for  the  alleged  murder  of  Sarah  Stout :  13 
How.  St.  Tr.  1105.  The  doubt  which  arose  in  that  case  upon  the  conflicting 
evidence,  whether  the  death  of  the  deceased  had  been  occasioned  by  mere  acci- 
dent, or  by  her  own  act,  or  by  the  act  of  another,  afforded,  as  it  seems,  a  deci- 
sive ground  for  acquittal. 

^  In  a  little  work,  entitled  The  Theory  of  Presumptive  Proof,  is  cited  the  case 
of  Thomas  Harris,  who  was  executed  at  York,  for  the  murder  of  James  Gray, 
in  the  year  1642.  According  to  that  statement,  Harris  kept  a  public  house,  and 
was  charged  by  his  man  servant,  Morgan,  with  having  strangled  James  Gray,  a 
travelling  guest,  in  his  house  ;  upon  the  testimony  of  Morgan,  aided  by  some 
circumstantial  evidence,  as  to  the  prisoner's  having  on  the  same  morning  con- 
cealed some  money  in  his  garden,  the  prisoner  was  convicted  and  executed,  al- 
though no  marks  of  violence  appeared  on  the  body  of  the  deceased,  and  who  had 
in  fact  died  of  apoplexy,  as  appeared  by  the  subsequent  confession  of  the  wit- 
ness himself. 


864  PKOOFS — DUTY    OF    THE    JURY. 

rial  and  important.  The  effect  may  be,  on  the  one  hand,  to  suggest  a 
view  of  the  case  which  consists  with  the  innocence  of  the  accused,  and 
which  might  otherwise  have  escaped  observation;  on  the  other  hand, 
its  effect  may  be  to  narrow  the  question  to  the  consideration  whether 
that  statement  be  or   be  not  excluded  and  falsified  by  the  evidence. 

The  recent  possession  of  stolen  property  is,  independently  of  the 
conduct  and  declarations  of  the  accused,  or  his  silence,  very  imper- 
fect evidence  of  guilt ;  the  apparent  possession  may  have  resulted 
from  the  malicious  act  of  some  other  person.  In  a  case,  therefore, 
where  no  act  of  concealment  or  assumption  of  property  can  be 
proved,  and  the  accused  is  consistent  in  denying  all  knowledge  of 
possession,  such  a  defence  becomes  entitled  to  the  most  serious  atten- 
tion, and  exacts  a  most  rigorous  inquiry  as  to  its  truth  or  probability; 
where,  on  the  other  hand,  the  prisoner  admits  the  possession,  and 
attempts  to  account  for  it  by  a  false  statement,  the  necessity  for  such 
an  inquiry  does  not  arise.' 

*\Vhat  circumstances  will  amount  to   proof  can  never  be 
L  -■    matter  of  general  definition  ;  the  legal  test  is  the  sufficiency 

of  the  evidence  to  satisfy  the  understanding  and  conscience  of  the 
jury.  On  the  one  hand,  absolute,  metaphysical  and  demonstrative 
certainty  is  not  essential  to  proof  by  circumstances.  It  is  sufficient 
if  they  produce  moral  certainty  to  the  exclusion  of  every  reasonable 
doubt;  even  direct  and  positive  testimony  does  not  afford  grounds 
of  belief  of  a  higher  and  superior  nature.  To  acquit  upon  light, 
trivial  and  fanciful  suppositions  and  remote  conjectures,  is  a  virtual 
violation  of  the  juror's  oath,  and  an  offence  of  great  magnitude 
against  the  interests  of  society,  directly  tending  to  the  disregard  of 
the  obligation  of  a  judical  oath,  the  hindrance  and  disparagement  of 

*  A  lamentable  case  occurred  some  years  ago  (I  state  from  common  report 
only),  which  strongly  illustrates  the  necessity  of  exerting  the  utmost  vigilance 
in  negativing  satisfactorily  every  other  possible  hypothesis,  in  a  case  of  purely 
circumstantial  evidence.  A  servant  girl  was  charged  with  having  murdered 
her  mistress.  The  circumstantial  evidence  was  very  strong  ;  no  persons  were 
in  the  house  but  the  murdered  mistress  and  the  prisoner,  the  doors  and  windows 
were  closed  and  secure,  as  usual ;  upon  this  and  some  other  circumstances  the 
prisoner  was  convicted,  principally  upon  the  presumption,  from  the  state  of  the 
doors  and  windows,  that  no  one  could  have  had  access  to  the  house  but  herself, 
and  she  was  accordingly  executed.  It  afterwards  appeared,  by  the  confession 
of  one  of  the  real  murderers,  that  they  had  gained  admission  to  the  house, 
which  was  situated  in  a  narrow  street,  by  means  of  a  board  thrust  across  the 
street,  from  an  upper  window  of  the  opposite  to  an  upper  window  of  the  house 
of  the  deceased ;  and  that  the  murderers  retreated  in  the  same  way,  leaving  no 
trace  behind  them. 


CIRCUMSTANTIAL     EVIDENCE.  865 

justice,  and  the  encouragemeMt  of  malefactors.  On  the  other  hand, 
a  juror  ouglit  not  to  condemn  unless  the  evidence  exclude  from  his  mind 
all  reasonable  doubt  as  to  the  guilt  of  the  accused,  and,  as  has  been 
■well  observed,  unless  he  be  so  convinced  bj  the  evidence  that  he  would 
venture  to  act  upon  that  conviction  in  matters  of  the  highest  concern 
and  importance  to  his  own  interest;  and  in  no  case,  as  it  seems,  ought 
the  force  of  circumstantial  evidence  sufficient  to  warrant  conviction, 
to  be  inferior  to  that  which  is  derived  from  the  testimony  of  a  single 
witness,  the  lowest  degree  of  direct  evidence. 

*Lastly  :  It  seems  that  mere  circumstantial  evidence  ought 
in  no  case  to  be  relied  on  where  direct  and  positive  evidence,  ^  -" 
which  might  have  been  given,  is  wilfully  withheld  by  the  prosecutor. 
Where  direct  evidence  is  attainable,  circumstantial  evidence  is  of  a 
secondary  nature  ;  beside,  the  great  excellence  of  indirect  evidence  is 
its  freedom  from  suspicion,  and  no  greater  discredit  can  be  thrown 
upon  it  than  by  the  withholding  of  direct  evidence. 

Thirdly,  with  respect  to  cases  of  conflicting  evidence.  The  first 
step  in  the  process  of  inquiry,  in  these  cases  must  naturally  and  ob- 
viously be,  to  ascertain  whether  the  apparent  inconsistencies  and  in- 
'congruities  which  such  evidence  presents  may  not  without  violence  be 
reconciled,  and  if  not,  to  what  extent,  and  in  what  particulais,  the  ad- 
verse evidence  is  irreconcilable ;  and  then,  by  careful  investigation 
and  comparison,  to  reject  that  which  is  vicious ;  and  thus,  if  it  be 
practicable,  to  reduce  the  whole  testimony  and  circumstances  of  uni- 
form and  consistent  tendency. 

Where  the  testimony  of  direct  witnesses  is  apparently  at  variance, 
it  is  to  be  considered,  in  the  first  place,  whether  they  be  not  in  reality 
reconcilable,  especially  where  there  is  no  extrinsic  reason  for  suspect- 
ing error  or  fraud.  But  if  their  statements  upon  examination  be 
found  to  be  irreconcilable,  it  becomes  an  important  duty  to  distinguish 
between  the  misconceptions  of  an  innocent  witness,  which  may  not 
affect  his  general  testimony,  and  wilful  and  corrupt  misrepresentations 
which  destroy  his  credit  altogether.  The  presumption  of  reason  as 
well  as  of  law  in  favor  of  innocence,  will  attribute  a  variance  in  testi- 
mony to  the  former  rather  than  the  latter  origin.  Partial  incongrui- 
ties and  discrepancies  in  testimony,  as  to  collateral  points,  are,  as  has 
been  already  observed,  to  be  expected ;  and  it  is  for  a  jury  to  deter- 
mine whether  in  the  particular  instance  they  are  of  such  a  nature  and 
character,  under  all  the  circumstances,  that  they  may  be  or  cannot  be 
attributed  to  mistake.  In  estimating  the  *probability  of  mis-  (-^n/^y-i 
take  and  error,  and  also  in  deciding  on  which  side  the  mistake    ^         -^ 


867  PROOFS — DUTY     OF    THE    JURY. 

lies,  much  must  depend  on  the  natural  talents  of  the  adverse  wit- 
nesses, their  quickness  of  perception,  strength  of  memory,  their 
previous  habits  of  general  attention,  or  of  attention  to  particular 
subject-matters.  A  physician  or  surgeon  would  be  much  more  likely 
to  observe  particular  symptoms  or  appearances  in  a  medical  or  surgi- 
cal case,  and  to  form  from  them  correct  conclusions,  than  an  un- 
skilful and  inexperienced  person  would  be  likely  to  do.  Much 
must  also  depend  upon  a  comparison  of  the  means  and  opportunity 
which  the  witnesses  had  for  making  observations,  of  the  circum- 
stances which  were  likely  to  excite  and  engage  their  attention,  and 
of  their  reasons  and  motives  for  attending ;  and  here  it  is  to  be  ob- 
served, that  there  is  an  important  distinction  between  positive  and 
negative  testimony. 

If  one  witness  were  positively  to  swear  that  he  saw  or  heard  a  fact, 
and  another  were  merely  to  swear  that  he  was  present,  but  did  not 
see  or  hear  it,  and  the  witnesses  were  equally  trustworthy,  the  general 
principle  would,  in  ordinary  cases,  create  a  preponderance  in  favor  of 
the  affii'mative ;  for  it  would  usually  happen  that  a  witness  who  swore 
positively,  minutely  and  circumstantially  to  a  fact  which  Avas  untrue, 
would  be  guilty  of  perjury,  but  it  would  by  no  means  follow  that  a 
witness  who  swore  negatively  would  be  perjured,  although  the  affirma- 
tive were  true  ;  the  falsity  of  the  testimony  might  arise  from  inatten- 
tion, mistake,  or  defect  of  memory  ;  and  therefore,  even  independ- 
ently of  the  usual  presumption  in  favor  of  innocence,  the  probability 
would  be  in  favor  of  the  affirmative.  If,  for  instance  two  persons 
should  remain  in  the  same  room  for  the  same  period  of  time,  and  one 
of  them  should  swear  that  during  that  time  he  heard  a  clock  in  the 
room  strike  the  hour,  and  the  other  should  swear  that  he  did  not  hear 
the  clock  strike,  it  is  very  possible  that  the  fact  might  be  true,  and  yet 
each  might  swear  truly.     It  is  not  only  possible,  but  probable  that 

the  latter  ^witness,  thou2;h  in  the  same  room,  through  inat- 
r*8681  '         o  '  o     ^ 

-         J    tention,  might  be  unconscious  of  the  fact,  or,  being  conscious 

of  it  at  the  time,  that  the  recollection  had  afterwards  faded  from 
his  memory.  It  follows,  therefore,  by  way  of  corollary  to  the  last 
proposition,  that  in  such  cases,  unless  the  contrary  manifestly  appear, 
the  presumption  in  favor  of  human  veracity  operates  to  support  the 
affirmative. 

And  further,  when,  in  cases  of  conflicting  testimony,  upon  a  com- 
parison between  the  witnesses  in  respect  of  the  means  and  opportu- 
nity which  they  have  had  of  ascertaining  the  facts  to  which  they 
testify,  it  turns  out  that  the  one  class  has  had  more  competent  and 


CONFLICT    OF     TESTIMONY.  868 

adequate  means  of  information  than  the  other  ;  or  that,  under  the 
circumstances,  the  attention  of  the  latter  was  not  so  likely  to  be  so 
fully  excited  and  particularly  directed  to  the  facts,  this  principle  co- 
operates with  the  Aveight  of  evidence  in  favor  of  the  former,  in  all 
cases  where  there  is  room  for  error  or  mistake. 

The  application  of  this  principle  supposes  that  the  positive  can  be 
reconciled  with  the  negative  testimony  without  violence  and  con- 
straint. Evidence  of  a  negative  nature  may,  under  particular  cir- 
cumstances, not  only  be  equal,  but  superior,  to  positive  evidence. 
This  must  always  depend  upon  the  question,  whether,  under  the  par- 
ticular circumstances,  the  negative  testimony  can  be  attributed  to 
inattention,  error  or  defect  of  memory.  If,  in  the  instance  above 
supposed,  two  persons  Avere  placed  in  the  room  Avhere  the  clock  was, 
for  the  express  purpose  of  ascertaining  by  their  senses  whether  it 
would  strike  or  not,  there  would  be  little  room  to  attribute  the  vari- 
ance between  their  negative  testimony  and  the  positive  testimony  of 
a  third  Avitness  to  mistake  or  inattention,  and  the  real  question  would 
be  as  to  the  credit  of  the  witnesses. 

It  is  also  observable  that  this  principle  is  inapplicable,  where  a 
negative  depends  on  the  establishment  of  an  opposite  positive  fact. 
Thus  an  alihi  negatives  the  actual  commission  of  a  ci'ime  by  the 
prisoner ;  but  the  evidence  *is  of  as  direct  and  positive  a 
nature  as  that  Avhich  tends  to  prove  his  presence  and  actual  ^  "^-^ 
commission  of  the  crime. 

Where  the  testimony  of  conflicting  Avitnesses  is  irreconcilable, 
and  cannot  be  attributed  to  incapacity  or  error,  it  frequently  be- 
comes a  painful  and  difficult  task  to  decide  to  Avhich  class  credit  is 
due.  And  here  it  is  to  be  observed,  in  the  first  place,  that  all 
those  considerations  Avhich  have  been  applied  as  tests  of  the  credit 
and  veracity  of  Avitnesses  uncontradicted,  are  also  tests  of  credi- 
bility in  cases  of  conflict.  The  first  point  of  comparison  is  their 
character  for  integrity.  This  may  either  depend  on  positive  evi- 
dence as  to   their    previous    situation,"   conduct  and    character,   or 

"  The  Roman  law  was  farmore  copious  than  our  own,  in  its  rules  of  exclusion. 
Consequens  est,  tit  in  omnibus  causis  Jidem  testium  elevet  (etas  pnerilis,  insania, 
conditio  vitce,  turpitudo,  jiaupertas,  magnum  opprobi'itim,  &c. :  Heinecc.  El.  .J. 
C,  Part  IV.,  sec.  cxxxviii.  L.  10,  fl".  L.  10,  c.  h.  t. — Kec  servorum  iestimonio  cre- 
dendum  esse,  nisi  alia  desit  ratio  veritatem  eruendi:  Ibid.  sec.  cxxxviii.,  L.  7,  ff. 
h.  f. —  Vacillare  Jidem  mulierum  quce  qucestum  corpore  fecerunt :  L.  3,  §  5,  h. — 
Eorum  qui  vitam  ad  cultrum  vel  ad  depugnandas  bestias  locarunt :  L.  3,  §  5,  h. 
f. —  Omnium,  viliorum  et  pauperum  quamditi  aliorum  est  copia:  L.  3,  ff.  L.  18,  c. 
h.  t. —  Ut  merito  repeUantur  j)ater  in  causa  filii,  Jilius  in  causa  patris,  aliique 


870  PROOFS — DUTY     OF     THE    JURY. 

*maj  be  matter  of  inference  and    presumption,  from    their 
L  -'    relative  situation  as 'to  the  parties,  or  the  subject-matter  of 

the  cause,  and  the  various  and  almost  innumerable  circumstances  by 
which  their  testimony  may  be  influenced  or  biased.  Where  testimony 
is  equally  balanced  in  all  other  respects,  a  slight  degree  of  interest 
or  connection  may  be  sufficient  to  turn  the  scale.  In  such  cases,  also, 
any  variance  in  the  testimony  of  the  witness  from  a  former  statement 
relating  to  the  same  transaction,  if  it  be  established  and  not  explained, 
necessarily  tends  to  impeach  either  his  integrity  or  his  ability. 

All  those  circumstances  which  were  likely  to  influence  and  bias 
witnesses  in  favor  of  the  party,  are  of  course  entitled  to  great  con- 
sideration in  weighing  their  credit,  although  they  do  not  exclude  their 
testimony.  These  are  of  too  obvious  and  extensive  a  nature  to  require 
enumeration  :  not  only  may  the  stronger  motives  arising  from  the  ties 
of  consanguinity,  friendship,  or  expectation  of  future  gain,  cast  a 
doubt  upon  the  credit  of  witnesses  whose  testimony  is  contrasted  with 
that  of  persons  who  stand  wholly  indifi"erent,  but  so  also  in  cases 
where,  in  other  respects  the  weight  of  testimony  is  nicely  balanced, 
may  many  considerations  of  inferior  and  weaker  description ;  such  as 
the  interest  which  the  witness  may  possess  in  a  similar  question,  or 
the  bias  and  prejudice  which  may  arise  in  favor  of  a  party  from  con- 
nection in  the  way  of  trade,  profession,  or  membership  of  any  de- 
scription -."^  considerations  of  this  kind,  which  would  frequently  afford 

potestati  vel  imperio  alierius,  subjecti,  vel  domestici:  L.  6,  L.  9,  L.  24,  f.  L.  3,  L. 
c.  h.  t. —  Tit  suspecti  eiiam  sunt  amid  et  inimici:  L.  3,  pr.  fF.  L.  5,  L.  17. — 
Although  a  proper  sense  of  the  sacred  obligation  of  an  oath  may  be  equally 
strong  in  every  condition  of  society,  yet  the  temporal  consequences  of  detected 
perjury  or  prevarication  may  frequently  depend  much  on  the  witness's  rank  or 
situation  in  life.  To  a  common  laborer,  the  temporal  consequences  of  a  viola- 
tion of  his  oath  would  probably  be  confined  merely  to  temporal  punishment, 
and  that  only  upon  a  conviction  after  an  expensive  legal  process ;  whilst  to  a 
solicitor  or  attorney,  whose  professional  existence  depends  upon  his  reputation 
and  credit,  loss  of  character  consequent  upon  detection,  although  there  should 
be  no  conviction,  might  end  in  his  ruin.  Considerations  of  this  nature  must 
obviously  possess  a  contrary  tendency,  where  the  testimony  of  a  witness  tends 
to  repel  and  remove  some  charge  of  improper  conduct,  which  would  otherwise 
affect  his  reputation.  Thus,  upon  a  question  whether  a  testator  was  capable  of 
executing  a  will,  a  professional  witness,  whether  legal  or  medical,  has  an  interest 
in  proving  the  capacity;  for  the  fact  that  he  had  made  or  even  witnessed  a  will, 
executed  by  one  utterly  incapable  of  making  one,  would  affect  his  professional 
charcacter.  Such  observations  apply  in  those  cases  only  of  doubt  and  suspicion 
where  the  evidence  is  of  a  conllicting  nature. 

*  Parimente  le  crcdibilitil  di  un  testimonio  puo  essere  alcuna  volta  sminuita 
qiuind'  cgli  sia  membro  d'  alcuna  sociatii  privata,  di  cui  gli  usi,  e  le  massime  siano 


CONFLICT    of'testimony.  870 

not  the  slightest  ground  of  questioning  the  credit  of  an  unimpeached 
*witness,  may  become  of  essential  importance  when  the  credit  r-^nn-,-, 
of  conflicting  witnesses  is  in  other  respects  in  a  state  of  equi-  ^  -^ 
poise. 

Such  considerations  become  still  more  important  where  any  sus- 
picion arises  from  the  manner  and  demeanor  of  the  Avitness  in  deliver- 
ing his  testimony.  These,  indeed,  frequently  afford  strong  tests  for 
judging  of  his  sincerity,  although  his  motive  be  not  apparent.  Mani- 
festations of  warmth  and  zeal  beyond  those  which  the  occasion 
naturally  calls  for,  over-forwardness  in  testifying  that  which  will 
benefit  the  party  for  whom  he  testifies,  and  ill-concealed  reluctance 
in  declaring  that  Avhich  tends  to  his  prejudice,  flippancy  and  levity 
of  manner,  coldness  and  apathy  in  describing  injuries  which  would 
naturally  excite  a  contrary  feeling,  indications  of  subtlety,  artifice 
and  cunning,  are,  with  a  multitude  of  others,  tests  for  estimating  the 
true  character  of  a  witness  and  the  value  of  his  testimony. 

But  above  all,  where  the  credit  of  conflicting  witnesses  is  doubtful, 
as  far  as  regards  their  number,  their  integrity,  their  means  of  know- 
ledge, and  the  consistency  and  probability  of  their  testimony,  a  com- 
parison of  their  statements  Avith  each  other,  and  with  undisputed  or 
established  facts,  is  a  great  test  of  credibility. 

The  relative  consistency  of  testimony  is  a  most  important  test  of 
comparison.  The  testimonies  of  witnesses  of  truth  will  consist  with 
each  other,  and  with  all  the  established  circumstances  of  the  case,  in 
numerous  and  minute  particulars,  which  are  frequently  beyond  the 
reach  of  invention,^  and  will  exhibit  that  degree  of  solid  coherency 
*which  necessarily  results  from  a  real  and  actual  connection  r-^Q,,^! 
and  congruity  in  nature,  which  minuteness  and  detail  of  cir-  •-  "'-' 
cumstances  will  serve  but  to  render  more  complete :  with  false  wit- 
nesses the  very  reverse  takes  place;  their  testimony  must  either 
be  sparing  in  circumstances,  and  therefore  of  a  nature  obviously  sus- 

0  non  ben  conosciute  o  diverse  dalle  puliche.  Un  tal  uomo  ha  non  solo  le  pro- 
pria ma  le  altrui  passioni :  Beccai'ia,  c.  13. 

y  Dr.  Paley,  with  reference  to  historical  evidence,  says,  "  The  undesignedness 
of  coincidences  is  to  be  gathered  from  their  latency,  their  minuteness,  their  ob- 
liquity ;  the  suitableness  of  the  circumstances  in  which  they  consist  to  the 
places  in  which  those  circumstances  occur,  and  the  circuitous  references  by 
which  they  are  traced  out,  demonstrate  that  they  have  not  been  produced  by 
meditation  or  by  any  fraudulent  contrivance  ;  but  coincidences  from  which  these 
causes  are  excluded,  and  which  are  too  close  and  numerous  to  be  accounted  for 
by  accidental  concurrence  of  fiction,  must  necessarily  have  truth  for  their 
foundation." 
50 


872  PROOFS — DUTY    OF    THE    JURY. 

picious,  or  be  liable  to  detection  from  comparing  the  invented  circum- 
stances with  each  other,  and  with  those  which  are  known  to  be  true. 

In  cases  of  conflicting  testimony,  and  particularly  where  the  subject 
of  litigation  is  remote  in  point  of  time,  or  the  question  depends  upon 
the  terms  of  oral  communications,  the  evidence  of  written  documents 
connected  with  the  transaction  are,  on  account  of  their  permanency, 
of  the  most  obvious  and  essential  importance.  Every  day  furnishes 
instances  of  the  weakness  of  human  memory  in  such  cases,  and  great 
opportunity  is  afforded  for  misrepresentation  or  mistake ;  whilst 
writings  are  permanent,  and,  as  has  well  been  observed,  are  witnesses 
difficult  to  be  corrupted.'" 

As  the  depositions  of  dead  or  absent  witnesses  are,  in  point  of  law, 
of  a  secondary  nature  to  the  vivd  voce  testimony  of  witnesses  sub- 
jected to  the  ordeal  of  cross-examination,  so  are  they  inferior  and 
weaker  in  point  of  force  and  effect.  So  true  is  it,  that  a  witness  will 
frequently  depose  that  in  private,  which  he  would  be  ashamed  to 
certify  before  a  public  tribunal.*  It  is  by  the  test  of  a  public  exami- 
nation, and  by  that  alone,  that  the  credit  of  a  witness,  both  as  to 
honesty  and  ability,  can  be  thoroughly  tried  and  appreciated.^  Nam 
minus  obstitisse  videtur  pudor  inter  jpaucos  signatores,'^  is  an  ancient 
and  a  powerful  observation  in  favor  of  oral  testimony. 

As  the  credit  due  to  a  witness  is  founded  in  the  first  *in- 

r*873"1 

L         J    stance  on  general  experience  of  human  veracity,  it  follows 

that  a  witness  who  gives  false  testimony  as  to  one  particular,  cannot 
be  credited  as  to  any,  according  to  the  legal  maxim,  falsuni  in  uno, 
falsum  in  omnibus.  The  presumption  that  the  witness  will  declare 
the  truth  ceases  as  soon  as  it  manifestly  appear  that  he  is  capable  of 
perjury.  Faith  in  a  witness's  testimony  cannot  be  partial  or  frac- 
tional ;  where  any  material  fact  rests  on  his  testimony,  the  degree  of 
credit  due  to  him  must  be  ascertained,  and  according  to  the  result  his 
testimony  is  to  be  credited  or  rejected. 

It  is  scarcely  necessary  to  observe,  that  this  principle  does  not 
extend  to  the  total  rejection  of  a  witness  whose  misrepresentation 
has  resulted  from  mistake  or  infirmity,  and  not  from  design ;  but 
though  his  honesty  remain  unimpeached,  this  is  a  consideration 
which  necessarily  affects  his  character  for  accuracy.  Neither  does 
the  principle  apply  to  testimony  given  in   favor  of  the  adversary ; 

^  Montesquieu,  Espr.  dc  Loix,  1.  28,  c,  44. 

»  3  Bl.  Comm.  373. 

*"  Supra,  p  34 ;  see  Pothier,  Ijy  Evans,  vol.  ii.  p.  235. 

•^  Quinctil.  1,  5,  c.  G. 


CREDIT     OF    WITNESSES.  873 

such  evidence  is  rather  to  be  considered  as  truth  reluctantly  ad- 
mitted, and  divulged  only  because  it  was  not  in  the  power  of  a  cor- 
rupt witness  to  conceal  it.  Hence  it  is  a  general  principle,  that 
a  jury  may  believe  that  which  makes  against  his  point  who  swears, 
although  they  do  not  believe  that  which  makes  for  it.** 

The  rejection  of  the  witness  may  not  be  the  only  consequence  of 
detection ;  for  if  there  be  reason  to  suppose,  from  the  circumstances, 
that  his  perjury  or  prevarication  is  the  result  of  subornation,  it 
affords  a  reasonable  ground,  in  a  doubtful  case,  for  suspecting  the 
testimony  of  other  witnesses  adduced  by  the  same  party.  This 
observation  has  no  weight  where  it  is  apparent  that  the  imputation 
is  merely  personal,  and  results  from  collateral  motives  independent 
of  the  cause. 

The  presumption  is  always  primd  facie,  and  in  the  absence  of 
circumstances  which  generate  suspicion,  in  *favor  of  the  [-:cq7  i-i 
veracity  of  a  witness;  but  where  the  usual  and  general  pre- 
sumption is  encountered  by  an  opposite  one,  it  is  necessary  that  the 
credit  of  the  witness  should  be  established  by  some  collateral  aid,  to 
the  satisfaction  of  a  jury.  The  ordinary  case  of  an  accomplice 
affords  an  illustration  of  this  application  of  the  principle :  his  testi- 
mony is  in  practice  deemed  to  be  insufficient  unless  his  credit  be  es- 
tablished by  confirmatory  evidence. 

As  it  is  universally  admitted  that  circumstantial  evidence  is  in  its 
own  nature  sufficient  to  warrant  conviction,  even  in  criminal  cases, 
and  as  the  test  of  sufficiency  is  the  understanding  and  conscience  of 
a  jury,  it  would  be  superfluous  and  nugatory  to  enter  into  a  discus- 
sion of  the  comparative  force  and  excellence  of  these  different  modes 
of  proof,  where  they  do  not  conflict  with  each  other.  In  the  abstract, 
and  in  the  absence  of  all  conflict  and  opposition  between  them,  the 
two  modes  of  evidence  do  not  in  strictness  admit  of  comparison ;  for 
the  force  and  efficacy  of  each  may,  according  to  circumstances,  be 
carried  to  an  indefinite  and  unlimited  extent,  and  be  productive  of 
the  highest  degree  of  probability,  amounting  to  the  highest  degree  of 
moral  certainty.  With  regard  to  the  comparative  force  and  efficacy 
of  these  modes  of  proof,  it  is  clear  that  circumstantial  evidence 
ought  not  to  be  relied  on  where  positive  proof  can  be  had,  and  that 
so  far  the  former  is  merely  of  a  secondary  nature.®  Hence  it  seems 
to  be  clear  that  no  conviction  in  a  criminal  case  ought  ever  to  be 
founded  on  circumstantial  evidence,  where  the  prosecutor  might  have 

^  See  Lord  Mausfield's  observations  in  Bermon  v.  Woodbridge,  Doug.  781. 
*  3  Comm.  371. 


874  PROOFS — DUTY    OF    THE    JURY. 

adduced  direct  evidence;  iand  in  civil  cases  the  resorting  to  such  a 
practice  would,  in  a  doubtful  case,  be  a  circumstance  pregnant  with 
the  strongest  suspicion. 

The  characteristic  excellence  of  direct  and  positive  evidence  con- 
sists in  the  consideration  that  it  is  more  immediate  and  more  proxi- 
j-^oi^r-i    mate  to  the  fact;    and  if  *no  doubt  or  suspicion  arise  as  to 

the  credibility  of  the  witnesses,  there  can  be  none  as  to  the 
fact  to  which  they  testify ;  the  only  question  is  as  to  their  credit. 
On  the  other  hand,  the  virtue  of  circumstantial  evidence  is  its  free- 
dom from  suspicion,  on  account  of  the  exceeding  difficulty  of  simu- 
lating a  number  of  independent  circumstances,  naturally  connected 
and  tending  to  the  same  conclusion.  In  theory,  therefore,  circum- 
stantial evidence  is  stronger  than  positive  and  direct  evidence,  wher- 
ever the  aggregate  of  doubt,  arising,  first,  upon  the  question,  whether 
the  facts  upon  which  the  inference  is  founded  are  sufficiently  estab- 
lished ;  and,  secondly,  upon  the  question,  whether,  assuming  the  facts 
to  be  fully  established,  the  conclusion  is  correctly  drawn  from  them, 
is  less  than  the  doubt,  whether,  in  the  case  of  direct  and  positive 
evidence,  the  witnesses  are  entirely  trustworthy.  Where  no  doubt 
exists  in  either  case,  comparison  is  useless ;  but  it  is  very  possible 
where  there  is  room  for  suspecting  the  honesty  or  accuracy  of  direct 
Avitnesses,  that  the  force  of  their  evidence  may  fall  far  short  of  that 
which  is  frequently  supplied  by  mere  circumstantial  evidence ;  and 
whenever  a  doubt  arises  as  to  the  credibility  of  direct  witnesses,  it  is 
an  important  consideration  in  favor  of  circumstantial  evidence,  that 
in  its  own  nature  it  is  much  less  liable  to  the  practice  of  fraud  and 
imposition  than  direct  evidence  is  ;  for  it  is  much  easier  to  suborn  a 
limited  number  of  witnesses  to  swear  directly  to  the  fact,  than  to 
procure  a  greater  number  to  depose  falsely  to  circumstances,  or  to 
prepare  and  counterfeit  such  circumstances  as  will  without  detection 
yield  a  false  result.  The  increasing  the  number  of  false  witnesses 
increases  the  probability  of  detection  in  a  very  high  proportion; 
for  it  multiplies  the  number  of  points  upon  which  their  statements 
may  be  compared  with  each  other,  and  also  the  number  of  points 
where  their  testimony  comes  in  contact  with  the  truth;  and  therefore 
multiplies  the  danger  of  inconsistency  and  variance  in  the  same  pro- 
portion. 
r^t^sT"!        *^^'  ^^  ^^^^  other  hand,  it  is  exceedingly  difficult  by  artful 

practice  to  create  circumstances  which  shall  wear  the  appear- 
ance of  truth,  and  tend  effectually  to  a  false  conclusion.  The  num- 
ber of  such  circumstances  must  of  necessity  be  limited  in  their  nature; 


CIRCUMSTANTIAL    EVIDENCE.  876 

they  must  be  such  as  are  capable  of  fabrication  by  an  interested 
party,  and  such  that  their  materiality  might  be  foreseen.  Hence  all 
suspicion  of  fraud  may  be  excluded  by  the  very  number  of  concur- 
ring circumstances,  when  they  are  derived  from  various  but  independ- 
ent sources,  or  by  the  nature  of  the  circumstances  themselves,  when 
either  it  was  not  in  the  power  of  the  adverse  party  to  fabricate  them, 
or  their  materiality  could  not  possibly  have  been  foreseen,  and 
consequently  where  no  temptation  to  fabricate  them  could  have 
existed. 

The  correspondence  or  inconsistency  of  direct  evidence  with  well- 
established  circumstances,  is  the  great,  and  frequently  the  only  test, 
for  trying  the  truth  of  direct  testimony  which  labors  under  suspicion . 
A  perjured  witness  will  naturally,  with  a  view  to  his  own  security, 
so  frame  bis  fiction  as  to  render  contradiction  by  direct  and  opposite 
testimony  impracticable.  He  will  also  be  sparing  in  his  detail  of 
circumstances  which  are  false,  and  which  are  capable  of  contradiction  ; 
,  the  more  circumstantial  his  statement  is,  the  more  open  it  is  to  detec- 
tion. Hence  it  is  that  circumstantiality  of  detail  is  usually  a  test  of 
sincerity,  provided  the  circumstances  be  of  such  a  nature  as  to  be 
capable  of  contradiction  if  they  be  false ;  and  that,  on  the  other  hand 
if  a  witness  be  copious  in  his  detail  of  circumstances  which  are  inca- 
pable of  contradiction,  but  sparing  of  those  which  are  of  an  opposite 
kind,  his  testimony  must  necessarily  be  regarded  with  a  degree  of 
suspicion.  As  circumstances  are  the  best  and  frequently  the  only 
means  of  detecting  false  testimony,  it  follows  that  no  fictions  are  more 
formidable  and  more  difficult  to  be  detected  than  those  which  are  mixed 
up  with  a  large  portion  of  truth  ;  every  circumstance  of  truth  inter- 
woven with  the  fiction,  so  *far  from  being  merely  negative  in 
its  eff'ect,  in  aff'ording  no  aid  for  detecting  the  fraud,  actually  L  J 
tends  to  confirm  and  support  it. 

It  is  however  to  be  observed,  that  positive  testimony  ought  not  to 
be  rejected  on  the  ground  of  inconsistency  with  circumstances,  unless 
the  incongruity  be  of  a  conclusive  and  decisive  nature.  Mere  impro- 
bability is  usually  an  insufiicient  ground  for  the  rejection  of  posi- 
tive testimony  which  labors  under  no  suspicion ;  for  experience  fre- 
quently shows  that  circumstances  do  in  reality  agree  and  did  actually 
co-exist,  although,  from  ignorance  of  the  numerous  links  by  which 
they  are  united  and  connected,  their  co-existence  would  a  pr-iori  have 
been  deemed  to  be  highly  improbable. 

When,  however,  the  positive  testimony  labors  under  doubt  and  sus- 
picion, mere  circumstantial  evidence  is  frequently  sufficient  to  prevail, 


877  PROOFS — DUTY    OF    THE    JURY. 

altliougli  such  testimony  be  not  wholly  and  absolutely  irreconcilable 
with  the  facts.  Thus  in  the  case  of  Mr.  JoUiffe's  will,  the  will  was  es- 
tablished on  circumstantial  evidence,  in  opposition  to  direct  testimony 
of  the  attesting  witnesses. 

Where  doubt  arises  from  circumstances  of  an  apparently  opposite 
and  conflicting  tendency,  the  first  step  in  the  natural  order  of  inquiry 
is  to  ascertain  whether  they  be  not  in  reality  reconcilable,  especially 
where  circumstances  cannot  be  rejected  without  imputing  perjury  to  a 
witness ;  for  perjury  is  not  to  be  presumed  ;  and  in  the  absence  of  all 
suspicion,  that  hypothesis  is  to  be  adopted  which  consists  with  and 
reconciles  all  the  circumstances  which  the  case  supplies.  In  the  next 
place,  where  the  circumstances  are  inconsistent  and  irreconcilable,  it 
becomes  necessary  to  inquire  which  of  them  are  attributable  to  error 
or  design.  Here  again,  in  distinguishing  between  the  real  and  genuine 
circumstances,  and  those  which  are  spurious,  regard  is  to  be  had  to 
those  principles  which  have  already  been  adverted  to:  it  is  rather  to 
be  presumed  that  one  witness  was  mistaken,  where  there  was  room 
for  mistake,  *than  that  another  witness,  where  the  facts  ex- 
^  -I  eluded  all  mistake,  was  wilfully  perjured.  Where  mistake  is 
out  of  the  question,  an  examination  of  the  different  degrees  of  credit 
due  to  the  witnesses  on  whose  testimony  the  conflicting  circumstances 
depend,  becomes  material ;  and  in  such  cases  a  careful  comparison 
of  the  circumstances  which  they  state,  with  facts  either  admitted 
or  fully  established,  is  of  the  most  obvious  and  essential  importance. 
Every  admitted  or  established  fact  affords  an  additional  test  for  try- 
ing the  truth  and  genuineness  of  those  which  are  doubtful,  by  means 
of  which  those  which  are  genuine  may  be  established  and  become  ad- 
ditional tests  of  truth,  and  those  which  are  false  may  be  rejected. 

Whenever  any  fact  is  found  to  be  wholly  inconsistent  with  those 
which  are  either  admitted  or  indubitably  proved,  the  mere  rejection 
of  that  single  fact,  and  the  difficulty  thus  removed,  is  not  the  only 
step  gained  in  the  progress  towards  truth ;  the  vicious  evidence  must 
have  resulted  from  error  or  from  fraud  ;  and  whether,  under  the 
circumstances,  it  is  to  be  ascribed  to  the  one  source  or  the  other,  it 
affords  a  test  for  judging  of  the  ability  or  integrity  of  the  witness,  and 
not  unfrcqucntly  affords  some  insight  into  the  conduct  of  the  party. 

Frauds  in  circumstantial  evidence  are  of  two  kinds :  a  false  witness 
may  swear  to  circumstances  purely  fictitious,  or  an  honest  witness 
may  swear  to  circumstances  which  he  has  really  observed,  but  which 
have  been  prepared  with  a  view  to  deceive ;  as  in  the  instance  already 
alluded  to,  where  a  discharged  pistol  was  placed  near  the  body  of  a 
murdered  person,  to   induce  a  belief  that  he   had  destroyed  himself. 


CONFLICT    OP    TESTIMONY.  878 

Those  of  the  formei'  description  admit  of  absolute  and  positive  con- 
tradiction, or  may  be  detected  bj  the  inconsistency  of  the  fictitious 
circumstances  with  those  established  by  unexceptionable  testimony; 
and  the  witness  himself  is  liable  to  detection  in  his  attempt  to  inter- 
weave that  which  he  has  invented  Avith  that  which  is  true.  Simu- 
lated facts,  on  the  other  hand,  are  in  themselves  true  ;  *they 

.  'J    r*8791 

are  false   only  inasmuch   as  they  tend  to  induce  a  false  con-    •-         -• 

elusion.  These,  however,  are  open  to  detection  by  a  careful  com- 
parison with  established  circumstances  ;  it  is  beyond  the  power  of 
human  subtlety  to  create  a  false  consistency  of  circumstances  beyond 
a  very  limited  extent.^ 

No  cases  of  conflicting  evidence  are  more  difficult  of  solution  than 
those  where  facts  apparently  well  established  lead  to  opposite  conclu- 
sions. These,  in  some  remarkable  instances,  are  of  such  a  nature  as 
to  leave  the  mind  in  a  state  of  perplexity  after  the  most  patient  and 
laborious  investigation.  This  more  especially  happens  where  the 
obscurity  arises  from  the  conduct  of  the  parties  concerned ;  so  diffi- 
cult is  it  to  ascertain  the  real  motives  by  which  the  actors  in  a  dis- 
tant transaction  were  influenced,  or  even  to  determine  whether  their 
conduct  has  not  resulted  from  weakness  or  caprice,  rather  than  from 
any  settled  or  determinate  principles  of  action,  or  from  the  operation 
of  mixed,  fluctuating  and  transitory  motives,  which  can  no  longer  be 
distinctly  traced.  The  celebrated  Douglas  case  may  be  cited  as  a 
striking  instance  of  this  nature.  The  gross  improbability  that  Sir 
John  Stuart  and  Lady  Jane  would,  under  the  circumstances,  have 
attempted  a  monstrous  fraud,  the  eflect  of  which  might  be  to  deprive 
their  own  future  ofi'spring  of  their  legitimate  rights,  and  the  vast 
danger  and  difficulty  of  carrying  such  a  scheme  into  execution,  by 
the  procurement  of  two  supposititious  children,  either  by  stealth  or  by 
bribery,  situated  as  they  were,  with  but  slender  resources  in  a  foreign 
capital,  under  the  eye  of  a  vigilant  police,  were  circumstances  so 
strong  in  favor  of  the  legitimacy  of  the  children,  that  nothing  but 
the  strange  and  unaccountable  conduct  of  the  parties  could  have  in- 
duced fair  and  reasonable  doubts  upon  this  interesting  and  important 
question.  To  pursue  these  considerations  further  would  be  inconsis- 
tent with  the  limits  of  *the  present  treatise.  Suffice  it  to 
add,  that  where  conflicting  probabilities  are  nicely  balanced,  ^  -* 
it  rarely  happens  that  some  rule  of  legal  policy  does  not  turn  the 
scale,  even  in  civil  cases;  and  that  in  criminal  proceedings,  where 
reasonable  doubt  exist,  mercy  ought  to  prevail. 

'  Supra,  p.  67. 


APPENDIX. 


Statute  6  &  7  VICT.  Cap.  LXXXV. 

An  Act  for  improving  the  Law  of  Evidence. 

[227id  August,  1843.] 

"  WHEREAS  the  inquiry  after  truth  in  courts  of  justice  is  often  ob- 
structed by  incapacities  created  by  the  present  law,  and  it  is  desirable  that 
full  information  as  to  the  facts  in  issue,  both  in  criminal  and  civil  cases, 
should  be  laid  before  the  persons  who  are  appointed  to  decide  upon  them, 
and  that  such  persons  should  exercise  their  judgment  on  the  credit  of  the 
witnesses  adduced  and  on  the  truth  of  their  testimony ;  Now  therefore  be  it 
enacted  by  the  Queen's  most  excellent  Majesty,  by  and  with  the  advice  and 
consent  of  the  Lords  spiritual  and  temporal,  and  Commons,  iu  this  parliament 
assembled,  and  by  the  authority  of  the  same.  That  no  person  offered  as  a 
witness  shall  hereafter  be  excluded  by  reason  of  incapacity  from  crime  or 
interest  from  giving  evidence,  either  in  person  or  by  deposition,  according  to 
the  practice  of  the  court,  on  the  trial  of  any  issue  joined,  or  of  any  matter 
or  question  or  on  any  inquiry,  arising  in  any  suit,  action,  or  proceeding,  civil 
or  criminal,  in  any  court,  or  before  any  judge,  jury,  sheriff,  coroner,  magis- 
trate, officer,  or  person  having,  by  law  or  by  consent  of  parties,  authority  to 
hear,  receive,  and  examine  evidence ;  but  that  every  person  so  offered  may 
and  shall  be  admitted  to  give  evidence  on  oath,  or  solemn  affirmation  in  those 
cases  wherein  affirmation  is  by  law  receivable,  notwithstanding  that  such 
person  may  or  shall  have  an  interest  in  the  matter  in  question,  or  in  the 
event  of  the  trial  of  any  issue,  matter,  question,  or  inquiry,  or  of  the  suit, 
action,  or  proceeding  in  which  he  is  offered  as  a  witness,  and  notwithstanding 
that  such  person  offered  as  a  witness  may  have  been  previously  convicted  of 
any  crime  or  offence :  Provided  that  this  act  shall  not  render  competent  any 
party  to  any  suit,  action,  or  proceeding  individually  named  in  the  record,  or 
any  lessor  of  the  plaintiff,  or  tenant  of  premises  sought  to  be  recovered  in 
ejectment,  or  the  landlord  or  other  person  in  whose  right  any  defendant  in 
replevin  may  make  cognizance,  or  any  pei'son  in  tvhose  immediate  and  indi- 
vidual behalf  any  action  may  he  brought  or  defended,  either  wholly  or  in 
part,  or  the  husband  or  wife  of  such  persons  respectively;  provided  also,  that 


881  APPENDIX. 

this  act  shall  not  repeal  any  provision  in  a  certain  act  passed  in  the  session 
of  parliament  *holden  in  the  seventh  year  of  the  reign  of  liis  late 
L  -•  Majesty  and  in  the  first  year  of  the  reign  of  her  present  Majesty, 
intituled  "Act  for  the  Amendment  of  the  Laws  with  respect  to  Wills:" 
Provided  that  in  courts  of  equity  any  defendant  to  any  cause  pending  in  any 
such  court  may  be  examined  as  a  witness  on  the  part  of  the  plaintifi*  or  of 
any  co-defendant  in  any  such  cause,  saving  just  exceptions;  and  that  any 
interest  which  said  defendant  so  to  be  examined  may  have  in  the  matter  or 
any  of  the  matters  in  question  in  the  cause  shall  not  be  deemed  a  just  ex- 
ception to  the  testimony  of  such  defendant,  but  shall  only  be  considered  as 
affecting  or  tending  to  affect  the  credit  of  such  defendant  as  a  witness. 

II.  And  be  it  enacted.  That  wherever  in  any  legal  proceedings  whatever 
legal  proceedings  may  be  set  out,  it  shall  not  be  necessary  to  specify  that 
any  particular  persons  who  acted  as  jurors  had  made  affirmation  instead  of 
oath,  but  it  may  be  stated  that  they  served  as  jurymen,  in  the  same  manner 
as  if  no  act  had  passed  for  enabling  persons  to  serve  as  jurymen  without 
oath. 

III.  And  be  it  enacted,  That  nothing  in  this  act  shall  apply  to  or  affect 
any  suit,  action,  or  proceeding  brought  or  commenced  before  the  passing  of 
this  act. 

IV.  And  be  it  enacted,  That  nothing  in  this  act  shall  extend  to  Scotland. 


Statute  14  &  15  VICT.  Cap.  XCIX. 

An  Act  to  amend  the  Law  of  Evidence. 

[7th  August,  1851.] 

"  WIIEREAS  it  is  expedient  to  amend  the  law  of  evidence  in  divers  par- 
ticulars;" Be  it  therefore  enacted  by  the  Queen's  most  excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and 
Commons,  in  this  present  Parliament  assembled,  and  by  the  authority  of  the 
same,  as  follows : 

I.  So  much  of  sect.  1  of  the  act  of  the  sixth  and  seventh  years  of  her 
present  Majesty,  chap.  85,  as  provides  that  the  said  act  shall  "  not  render 
competent  any  party  to  any  suit,  action,  or  proceeding  individually  named 


APPENDIX.  882 

in  the  record,  or  any  lessor  of  the  plaintiff,  or  tenant  of  premises  sought  to 
be  recovered  in  ejectment,  or  the  landlord  or  other  person  in  whose  right 
any  defendant  in  replevin  may  make  cognizance,  or  any  person  in  whose 
immediate  and  individual  behalf  any  action  may  be  brought  or  defended, 
either  wholly  or  in  part,"  is  hereby  repealed. 

II.  Ou  the  trial  of  any  issue  joined,  or  of  any  matter  or  question,  or  on 
any  inquiry  arising  in  any  suit,  action,  or  other  proceeding  in  any  court 
of  justice,  or  before  any  person  having  by  law  or  by  consent  of  parties, 
^authority  to  hear,  receive,  and  examine  evidence,  the  parties  thereto 

and  the  persons  in  whose  behalf  any  such  suit,  action,  or  other  pro-  '-  -^ 
ceeding  may  be  brought  or  defended,  shall,  except  as  hereinafter  excepted  be 
competent  and  compellable  to  give  evidence,  either  viva  voce  or  by  deposi- 
tion, according  to  the  practice  of  the  court,  on  behalf  of  either  or  any  of 
the  parties  to  the  said  suit,  action,  or  other  proceeding. 

III.  But  nothing  herein  contained  shall  render  any  person  who  in  any 
criminal  proceeding  is  charged  with  the  commission  of  any  indictable  oflPence, 
or  any  offence  punishable  on  summary  conviction,  competent  or  compellable 
to  give  evidence  for  or  against  himself  or  herself,  or  shall  render  any  person 
compellable  to  answer  any  question  tending  to  criminate  himself  or  herself,  or 
shall  in  any  criminal  proceeding  render  any  husband  competent  or  compel- 
lable to  give  evidence  for  or  against  his  wife,  or  any  wife  competent  or  com- 
pellable to  give  evidence  for  or  against  her  husband. 

IV.  Nothing  herein  contained  shall  apply  to  any  action,  suit,  proceeding, 
or  bill  in  any  court  of  common  law,  or  in  any  ecclesiastical  court,  or  in  either 
house  of  parliament,  instituted  in  consequence  of  adultery,  or  to  any  action 
for  breach  of  promise  of  marriage. 

V.  Nothing  herein  contained  shall  repeal  any  provision  contained  in  chap- 
ter twenty-six  of  the  statute  passed  in  the  session  of  parliament  holden  in 
the  seventh  year  of  the  reign  of  King  William  the  Fourth  and  the  first  year 
of  the  reign  of  her  present  Majesty. 

VI.  Whenever  any  action  or  other  legal  proceeding  shall  henceforth  be 
pending  in  any  of  the  superior  courts  of  common  law  at  Westminster  or  Dub- 
lin, or  the  court  of  common  pleas  for  the  county  palatine  of  Lancaster,  or 
the  court  of  pleas  for  the  county  of  Durham,  such  court  and  each  of  the 
judges  thereof  may  respectively,  on  application  made  for  such  purposes  by 
either  of  the  litigants,  compel  the  opposite  party  to  allow  the  party  making 
the  application  to  inspect  all  documents  in  the  custody  or  under  the  control 
of  such  opposite  party  relating  to  such  action  or  other  legal  proceeding,  and, 
if  necessary,  to  take  examined  copies  of  the  same,  or  to  procure  the  same  to 


883 


APPENDIX. 


be  duly  stamped,  iu  all  cases  in  which  previous  to  the  passing  of  this  act  a 
discovery  might  have  been  obtained  by  filing  a  bill  or  by  any  other  proceed- 
ing in  a  court  of  equity  at  the  instance  of  the  party  so  making  application 
as  aforesaid  to  the  said  court  or  judge. 

VII.  All  proclamations,  treaties,  and  other  acts  of  state  of  any  foreign 
state  or  of  any  British  colony,  and  all  judgments,  decrees,  orders,  and  other 
judicial  proceedings  of  any  court  of  justice  in  any  foreign  state  or  in  any 
British  colony,  and  all  affidavits,  pleadings,  and  other  legal  documents  filed 
or  deposited  in  any  such  court,  may  be  proved  in  any  court  of  justice,  or 
before  any  person  having  by  law  or  by  consent  of  parties  authority  to  hear, 
receive,  and  examine  evidence,  either  by  examined  copies,  or  by  copies 
authenticated  as  hereinafter  mentioned ;  that  is  to  say,  if  the  document 
sought  to  be  proved  be  a  proclamation,  treaty,  or  other  act  of  state,  the  au- 
thenticated copy  to  be  admissible  in  evidence  must  purport  to  be  sealed  with 
the  seal  of  the  foreign  state  or  British  colony  to  which  the  original  document 
r*8fi41    ^^^o'^g^?  ^^^  if  ^^^  *document  sought  to  be  proved  be  a  judgment, 

decree,  or  other  judicial  proceeding  of  any  foreign  or  colonial  court, 
or  an  affidavit,  pleading,  or  other  legal  document  filed  or  deposited  in  any 
such  court,  the  authenticated  copy  to  be  admissible  in  evidence  must  purport 
either  to  be  sealed  with  the  seal  of  the  foreign  or  colonial  court  to  which  the 
original  document  belongs,  or,  in  the  event  of  such  court  having  no  seal,  to 
be  signed  by  the  judge,  or,  if  there  be  more  than  one  judge,  by  any  one  of 
the  judges  of  the  said  court,  and  such  judge  shall  attach  to  his  signature  a 
statement  in  writing  on  the  said  copy  that  the  court  whereof  he  is  a  judge 
has  no  seal ;  but  if  any  of  the  aforesaid  authenticated  copies  shall  purport  to 
be  sealed  or  signed  as  hereinbefore  respectively  directed,  the  same  shall  re- 
spectively be  admitted  in  evidence  in  every  case  in  which  the  original  docu- 
ment could  have  been  received  in  evidence,  without  any  proof  of  the  seal 
where  a  seal  is  necessary,  or  of  the  signature  or  of  the  truth  of  the  statement 
attached  thereto,  where  such  signature  and  statement  are  necessary,  or  of  the 
judicial  character  of  the  person  appearing  to  have  made  such  signature  and 
statement. 

VIII.  Every  certificate  of  the  qualification  of  an  apothecary  which  shall 
purport  to  be  under  the  common  seal  of  the  society  of  the  art  and  mystery  of 
apothecaries  of  the  city  of  London,  shall  be  received  in  evidence  in  any  court 
of  justice,  and  before  any  person  having  by  law  or  consent  of  parties  authority 
to  hear,  receive,  and  examine  evidence,  without  any  proof  of  tho  said  seal  or 
of  the  authenticity  of  the  said  certificate,  and  shall  be  deemed  sufficient 
proof  that  the  person  named  therein  has  been  from  the  date  of  the  said 
certificate  duly  qualified  to  practice  as  an  apothecary  in  any  part  of  England 
or  Wales. 


APPENDIX.  884 

IX.  Every  document  which  by  any  law  now  in  force  or  hereafter  to  be  in 
force  is  or  shall  be  aduiissible  in  evidence  of  any  particular  in  any  court  of 
justicfe  in  England  or  Wales  without  proof  of  the  seal  or  stamp  or  signature 
authenticating  the  same,  or  of  the  judicial  or  official  character  of  the  person 
appearing  to  have  signed  the  same,  shall  be  admitted  in  evidence  to  the  same 
extent  and  for  the  same  purposes  in  any  court  of  justice  in  Ireland,  or  before 
any  person  having  in  Ireland  by  law  or  by  consent  of  parties,  authority  to 
hear,  receive,  and  exaniiue  evidence,  without  proof  of  the  seal  or  stump  or 
signature  authenticating  the  same,  or  of  the  judicial  or  official  character  of 
the  person  appearing  to  have  signed  the  same. 

X.  Every  document  which  by  any  law  now  in  force  or  hereafter  to  be  in 

,  force  is  or  shall  be  admissible  in  evidence  of  any  particular  in  any  court  of 
justice  in  Ireland  without  proof  of  the  seal  or  stamp  or  signature  authenti- 
cating the  same,  or  of  the  judicial  or  official  character  of  the  person  appear- 
ing to  have  signed  the  same,  shall  be  admitted  in  evidence  to  the  same 
extent  and  for  the  same  purposes  in  any  court  of  justice  in  England  or 
Wales,  or  before  any  person  having  in  England  or  Wales  by  law  or  by  con- 
sent of  parties  authority  to  hear,  receive,  and  examine  evidence,  without 
proof  of  the  seal  or  stamp  or  signature  authenticating  the  same,  or  of  the 
judicial  or  official  character  of  the  person  appearing  to  have  signed  the 
same. 

XI.  Every  document  by  which  any  law  now  in  force  or  hereafter  to  be  in 

force  is  or  shall  be  admissible  in  evidence  of  any  particular  in  any  court  of 

*iustice  in  Enjjland  or  Wales  or  Ireland  without  proof  of  the  seal  or 

.  .  r*885T 

stamp  or  signature  authenticating  the  same,  or  of  the  judicial  or  •-         -• 

official  character  of  the  person  appearing  to  have  signed  the  same,  shall  be 
admitted  in  evidence  to  the  same  extent  and  for  the  same  purposes  in  any 
court  of  justice  of  any  of  the  British  colonies,  or  before  any  person  having 
in  any  of  such  colonies  by  law  or  by  consent  of  parties  authority  to  hear, 
receive,  and  examine  evidence,  without  proof  of  the  seal  or  stamp,  or  signa- 
ture authenticating  the  same,  or  of  the  judicial  or  official  character  of  the 
person  appearing  to  have  signed  the  same. 

XII.  Every  register  of  a  vessel  kept  under  any  of  the  acts  relating  to  the 
registry  of  British  vessels  may  be  proved  in  any  court  of  justice,  or  before 
any  person  having  by  law  or  by  consent  of  parties  authority  to  hear,  receive, 
and  examine  evidence,  either  by  the  production  of  the  original  or  by  an 
examined  copy  thereof,  or  by  a  copy  thereof  purporting  to  be  certified  under 
the  hand  of  the  person  having  the  charge  of  the  original,  and  which  person 
is  hereby  required  to  furnish  such  certified  copy  to  any  person  applying  at 
a  reasonable  time  for  the  same,  upon  payment  of  the  sum  of  one  shilling ; 
and  every  such  register  or  such  copy  of  a  register,  and  also  every  certificate 


»85  APPENDIX. 

of  registry,  granted  under  any  of  the  acts  relating  to  the  registry  of  British 
vessels,  and  purporting  to  be  signed  as  required  by  law,  shall  be  received  in 
evidence  in  any  court  of  justice,  or  before  any  person  having  by  law  or  by 
consent  of  parties,  authority  to  hear,  receive,  and  examine  evidence,  as  ■primO, 
facie  proof  of  all  the  matters  contained  or  recited  in  such  register  when  the 
register  or  such  copy  thereof  as  aforesaid  is  produced,  and  of  all  the  matters 
contained  or  recited  in  or  endorsed  on  such  certificate  of  registry  when  the 
said  certificate  is  produced. 

XITI.  And  whereas  it  is  expedient,  as  far  as  possible,  to  reduce  the  ex- 
pense attendant  upon  the  proof  of  criminal  proceedings ;  Be  it  enacted, 
That  whenever  in  any  proceeding  whatever  it  may  be  necessary  to  prove  the 
trial  and  conviction  or  acquittal  of  any  person  charged  with  any  indictable 
oflPence,  it  shall  not  be  necessary  to  produce  the  record  of  the  conviction  or 
acquittal  of  such  person,  or  a  copy  thereof,  but  it  shall  be  sufl&cient  that  it 
be  certified  or  purport  to  be  certified  under  the  hand  of  the  clerk  of  the 
court  or  other  officer  having  the  custody  of  the  records  of  the  court  where 
such  conviction  or  acquittal  took  place,  or  by  the  deputy  of  such  clerk  or 
other  officer,  that  the  paper  produced  is  a  copy  of  the  record  of  the  indict- 
ment, trial,  conviction,  and  judgment  or  acquittal,  as  the  case  may  be, 
omitting  the  formal  parts  thereof. 

XIV.  Whenever  any  book  or  other  document  is  of  such  a  public  nature 
as  to  be  admissible  in  evidence  on  its  mere  production  from  the  proper  cus- 
tody, and  no  statute  exists  which  renders  its  contents  provable  by  means  of 
a  copy,  any  copy  thereof  or  extract  therefrom  shall  be  admissible  in  evidence 
in  any  court  of  justice,  or  before  any  person  now  or  hereafter  having  by  law 
or  by  consent  of  parties  authority  to  hear,  receive  and  examine  evidence ; 
provided  it  be  proved  to  be  an  examined  copy  or  extract,  or  provided  it  pur- 
port to  be  signed  and  certified  as  a  true  copy  or  extract  by  the  officer  to 
whose  custody  the  original  is  entrusted,  and  which  officer  is  hereby  required 

to  furnish  such  *certified  copy  or  extract  to  any  person  applying  at 
L  -la  reasonable  time  for  the  same,  upon  payment  of  a  reasonable  sum 
for  the  same,  not  exceeding  four  pence  for  every  folio  of  ninety  words. 

XV.  If  any  officer  authorized  or  required  by  this  act  to  furnish  any  certi- 
fied copies  or  extracts,  shall  wilfully  certify  any  document  as  being  a  true 
copy  or  extract,  knowing  that  the  same  is  not  a  true  copy  or  extract,  as  the 
case  may  be,  he  shall  be  guilty  of  a  misdemeanor,  and  be  liable,  upon  con- 
viction, to  imprisonment  for  any  term  not  exceeding  eighteen  months. 

XVI.  Every  court,  judge,  justice,  officer,  commissioner,  arbitrator,  or 
other  person,   now  or  hereafter  having   by  law  or  by  consent  of  parties 


APPENDIX.  886 

authority  to  hear,  receive,  and  examine  evidence,  is  hereby  empowered  to 
administer  an  oath  to  all  such  witnesses  as  are  legally  called  before  them 
respectively. 

XVII.  If  any  person  shall  forge  the  seal,  stamp  or  signature  of  any  docu- 
ment in  this  act  mentioned  or  referred  to,  or  shall  tender  in  evidence  any 
such  document  with  a  false  or  counterfeit  seal,  stamp,  or  signature  thereto, 
knowing  the  same  to  be  ftilse  or  counterfeit,  he  shall  be  guilty  of  felony  and 
shall  upon  conviction  be  liable  to  transportation  for  seven  years,  or  to  im- 
prisonment for  any  term  not  exceeding  three  years  nor  less  than  one  year, 
with  hard  labor ;  and  whenever  any  such  document  shall  have  been  admitted 
in  evidence  by  virtue  of  this  act,  the  court  or  the  person  who  shall  have  ad- 
mitted the  same  may,  at  the  request  of  any  party  against  whom  the  same  is 
so  admitted  in  evidence,  direct  that  the  same  shall  be  impounded  and  be 
kept  in  the  custody  of  some  officer  of  the  court,  or  other  proper  person,  for 
such  period  and  subject  to  such  conditions  as  to  the  said  court  or  person 
shall  seem  meet;  and  every  person  who  shall  be  charged  with  committing 
any  felony  under  this  act  or  under  the  act  of  the  eighth  and  ninth  years  of 
her  present  Majesty,  chapter  one  hundred  and  thirteen,  may  be  dealt  with, 
indicted,  tried,  and,  if  convicted,  sentenced,  and  his  offence  may  be  laid  and 
charged  to  have  been  committed,  in  the  county,  district,  or  place  in  which 
he  shall  be  apprehended  or  be  in  custody ;  and  every  accessory  before  or 
after  the  fact  to  any  such  offence  may  be  dealt  with,  indicted,  tried,  and,  if 
convicted,  sentenced,  and  his  offence  laid  and  charged  to  have  been  com- 
mitted, in  any  county,  district  or  place  in  which  the  principal  offender  may 
be  tried. 

XVIII.  This  act  shall  not  extend  to  Scotland. 

XIX.  The  words  "  British  colony,"  as  used  in  this  act,  shall  apply  to  all 
the  British  territories  under  the  government  of  the  East  India  Company, 
and  to  the  islands  of  Guernsey,  Jersey,  Alderney,  Sark,  and  Man,  and  to 
all  other  possessions  of  the  British  crown,  wheresoever,  and  whatsoever. 

XX.  This  act  shall  come  into  operation  on  the  first  day  of  November  in 
the  present  year. 


887  APPENDIX. 


[*887]  *Statute  15  &  16  VICT.  Cap.  LXXVI. 

CXVII.  Either  party  may  call  ou  the  other  party  by  notice  to  admit  any 
document,  saving  all  just  exceptions;  and  in  case  of  refusal  or  neglect  to 
admit,  the  costs  of  proving  the  document  shall  be  paid  by  the  party  so  neg- 
lecting or  refusing,  whatever  the  result  of  the  cause  may  be,  unless  at  the 
trial  the  judge  shall  certify  that  the  refusal  to  admit  was  reasonable;  and  no 
cost  of  proving  any  document  shall  be  allowed  unless  such  notice  be  given, 
except  in  cases  where  the  omission  to  give  the  notice  is  in  the  opinion  of  the 
Master  a  saving  of  expense. 

CXVIII.  An  affidavit  of  the  attorney  in  the  cause,  or  his  clerk,  of  the 
due  signature  of  any  admission  made  in  pursuance  of  such  notice,  and 
annexed  to  the  affidavit,  shall  be  in  all  cases  sufficient  evidence  of  such 
admissions. 

CXIX.  An  affidavit  of  the  attorney  in  the  cause,  or  his  clerk,  of  the 
service  of  any  notice  to  produce,  in  respect  of  which  notice  to  admit  shall 
have  been  given,  and  of  the  time  when  it  was  served,  with  a  copy  of  such 
notice  to  produce  annexed  to  such  affidavit,  shall  be  sufficient  evidence  of 
the  service  of  the  original  of  such  notice,  and  of  the  time  when  it  was 
served. 

CCXXII.  It  shall  be  lawful  for  the  superior  courts  of  common  law,  and 
every  judge  thereof,  and  any  judge  sitting  at  Nisi  Prius,  at  all  times  to 
amend  all  defects  and  errors  in  any  proceeding  in  civil  causes,  whether  there 
is  anything  in  writing  to  amend  by  or  not,  and  whether  the  defect  or  error 
be  that  of  the  party  applying  to  amend  or  not ;  and  all  such  amendments 
may  be  made  with  or  without  costs,  and  upon  such  terms  as  to  the  court  or 
judge  may  seem  fit,  and  all  such  amendments  as  may  be  necessary  for  the 
purpose  of  determining  in  the  existing  suit  the  real  question  in  controversy 
between  the  parties  shall  be  so  made. 


INDEX. 


ABBEY, 

books  and  chartularies  of,  proper  custody  of,  528. 

what  and  when  evidence,  546,  549. 
ABSENCE, 

of  witness,  procedure  in  case  of,  109. 

of  attesting  witness,  512-521.     And  see  Attesting  Witness. 
ACCEPTANCE, 

of  what  evidence,  623.     See  tit.  Bill  of  Exchange. 
ACCESSORY, 

may  controvert  guilt  of  principal,  367,  385. 
record  of  conviction  of  principal,  not  conclusive  against,  726. 
ACCOMPLICE, 

evidence  of,  admissible,  128,  n. 

but  not  if  included  in  indictment  and  trial,  ib. 
requires  confirmation,  821. 
ACQUITTAL, 

upon  an  indictment  not  evidence  in  civil  action,  361. 

seldom  conclusive  that  defendant  had  not  committed  an  injury  for  which  he 

would  be  responsible  in  civil  action,  ib. 
by  court-martial  does  not  preclude  defendant  in  an  action  justifying  the  arrest, 
363. 

ACTS, 

declaration  accompanying,  frequently  admissible,  51. 
but  the  act  itself  must  be  material  and  admissible,  52. 
of  strangers  not  admissible,  82. 
of  party  always  evidence  against  him,  85. 
evidence  of  nature  of,  by  accompanying  declaration,  466. 
motives  and  intentions  may  be  inferred  from,  849. 
rational  agent  must  be  taken  to  contemplate  consequences  of,  ib. 
ACTS  OF  PARLIAMENT, 

are  records  of  the  highest  and  most  absolute  proof,  273. 

are  either  public  or  private,  274. 

public,  require  no  proof,  ib. 

private,  must  be  proved,  276. 

mode  of  proof,  ib, 

Stat.  13  &  14  Vict.  c.  21,  277. 

all,  to  be  deemed  public  and  judicially  noticed,  unless  the  contrary  be  declared, 

278. 
recitals  of  facts  in  public  acts  evidence  of  such  facts,  278. 

but  not  generally  so  in  private  acts,  ib. 
ACTS  OF  STATE, 

may  be  proved  by  official  document,  279. 

or  by  the  Gazette,  ib. 

or  by  printed  proclamations,  ib. 
foreign,  may  be  proved  by  examined  copies,  281. 

or  under  the  seal  of  the  country,  ib. 
colonial,  how  proved,  ib. 
commercial  regulations  may  be  proved  by  copies,  ib. 

51 


890  INDEX. 

ADJUDICATION, 

evidence  between  parties,  upon  proof  of  identity  of  the  parties,  324. 

identity  of  the  fact,  333. 
that  it  was  direct,  337. 
that  it  is  applicable,  341. 

ADMINISTRATION, 

letters  of,  conclusive  only  on  the  point  directly  involved,  339. 

but  not  on  collateral  matters,  as  death,  kc,  ib. 
refusal  of,  not  evidence  to  disprove  marriage,  ib. 
proof  of,  393. 

certificate  of,  by  Ecclesiastical  Court,  is  evidence  of,  394. 
also,  order  book,  ib. 
also,  act  book,  or  examined  copy  of,  ib. 

ADMINISTRATOR, 

failing  in  action,  not  estopped  from  suing  as  executor,  337. 

ADMIRALTY, 

official  letter  to,  admissibility  of,  305. 
muster  roll  of  a  ship  from,  when  evidence,  ib. 
decision  of  court  of,  effect  of,  380,  392. 

must  stand  till  reversed,  401. 

ADMISSIONS, 

general  principle  as  to,  50. 

party  bound  by,  against  his  interest,  ib. 

in  pleadings,  449. 

in  one  court,  not  evidence  in  another,  450. 

in  pleadings,  not  to  be  taken  as  confessions,  ib. 

except  where  material  facts  are  traversed  and  found,  451,  639. 

a  demurrer  is  onlv  an  admission  of  facts  well  pleaded,  ib. 

under  R.  G.  Hil.  T.  4  Will.  4,  571. 

consent  of  parties  supersedes  necessitj'  of  proof,  573. 

as  to  one  of  several  issues,  does  not  operate  as  to  others,  640. 

verbal,  by  part)^  as  to  contents  of  writing  admissible,  505. 

admission  under  seal  when  conclusive,  459,  577. 

in  bill  in  equity  not  evidence  as  to  facts  stated  in  it,  439. 

in  answer  in  Chancery  is  evidence  against  party  making  it,  441. 

but  not  against  others  without  privity  of  interest,  ib. 

in  answer  by  guardian  is  not  admissible  against  ward,  442.     See  tit.  Declara- 
tions— Entries. 
ADVERSARY, 

proof  of  document  when  in  possession  of,  550-571. 

notice  to  produce  such  must  be  given,  551. 

except  where  party  must  know  he  is  charged  with  possession,  5G1. 

after  notice,  document  cannot  be  got  rid  of,  553. 

possession  by  one  in  privity  with,  is  possession  of  adversary,  ib. 

when  document  produced,  it  must  be  proved  in  usual  way,  565. 

if  not  produced,  proof  must  be  given  as  in  case  of  loss,  569. 

but  slighter  evidence  is  sufficient,  ib. 
AFFIDAVIT, 

when  it  may  be  proved  by  examined  copy,  166,  «.,  449. 

voluntary,  not  admissible,  34,  448. 
except  against  maker,  ib.  448. 

when  original  must  be  produced,  2G6. 

filed  or   deposited  in  any  foreign  or   colonial  court  may  be  proved  by  copy 
under  seal  of  the  court,  399. 
AFFIRMATION, 

by  certain  religious  sects  allowed,  32.     See  also  tit.  Moravian — Quaker. 

AFFIRMATIVE, 

proof  of,  lies  on  party  alleging,  587. 

sometimes  presumed  by  law,  591.     Sec  tit.  Onvs  Probandi. 

AGE, 

prcsumiitioii  of  law  arising  from,  521,  522,  n. 
not  proved  by  baptismal  register,  299. 


INDEX.  891 

AGENT, 

entries  by,  admissible  in  certain  cases,  479. 

rational,  must  be  taken  to  contemplate  consequences,  of  his  acts,  849.    See  tit. 

Declaration — Entries — Interest. 
AGREEMENT, 

when  reduced  to  writing,  writing  only  evidence  of,  655. 

sense  of  written,  not  to  be  altered  by  parol  evidence,  463.     See  tit.  Contrctcl — 

Parol  Evidence —  Writle7i  Instruments. 

ALMANAC, 

judicially  noticed  by  the  courts,  738. 
ALTERATION, 

in  instrument  should  be  explained  by  party  producing  it,  500. 

proof  may  be  given  of,  how  occasioned,  501. 
AMBIGUITY, 

distinction  between  latent  and  patent,  652. 

latent,  may  be  removed  by  parol  evidence,  ib. 

patent,  cannot  be  so  removed,  653. 

AMENDMENT, 

statutes  relating  to,  633,  634,  637,  App. 
decisions  upon,  ib.     See  tit.  Variance. 
ANCIENT  FACTS, 

may  be  proved  by  evidence  of  reputation  and  tradition,  46. 
supported  by  proof  of  enjoyment  and  acquiescence,  ib. 

ANCIENT  INSTRUMENTS, 

admissible  in  evidence,  93,  523. 
upon  proof  of  antiquity,  ib. 

of  coming  from  proper  repository,  ib.  291,  524, 

of  freedom  from  suspicion,  ib. 

of  consistent  acts  of  enjoyment,  ib. 
counterparts  of  old  leases  when  admissible,  94. 
licenses,  ib. 

surveys  under  authority,  284. 
ecclesiastical  terriers,  290. 
deeds,  maps,  &c.,  473. 

ANSWER  IN  CHANCERY,  ' 

is  evidence  against  the  party  making  it,  441. 

or  one  claiming  under  him,  443. 

but  not  against  others,  i^. 
when  read,  the  whole  is  evidence,  444. 

except  where  the  object  is  to  show  that  the  witness  was  incompetent,  ib. 
is  proved  by  production  of  the  bill  and  answer,  447. 

or  admitted  or  examined  copies,  ib. 
correspondence  of  names,  &c.,  of  parties  is  prima  facie  evidence  of  identity  of 

equity,  447. 
but  not  at  common  law  or  in  criminal  proceedings,  448. 

APPEAL, 

further  evid-ence  admissible  on,  254. 

except  legislative  provision  to  the  contrary,  ib. 
at  sessions,  ©rder  of  procedure  on,  595. 

APPRENTICE, 

proof  of  search  for  indentures  of,  531,  536. 

ARBITRATION, 

court  may  direct  attendance  of  witnesses  at,  103. 

and  such  witnesses  are  protected  from  arrest,  113. 
award  conclusive  of  subject-matter,  398. 

but  must  be  proved  to  have  been  duly  made,  399.     See  tit.  Award. 

ARMORIAL  BEARINGS, 

are  evidence  on  questions  of  pedigree,  312. 

upon  proof  by  office  of  Heralds'  College,  ib. 


892       ■  INDEX. 

ARREST, 

protection  of  witnesses  from,  113. 

except  on  criminal  process,  114. 

or  by  their  bail,  ib. 
ARTIFICIAL  EVIDENCE, 

provided  by  the  law  for  general  conyenience,  96. 

records,  grants,  agreements,  &c.,  97. 

and  artificial  effects  annexed  to  them,  98. 

also  manner  and  form  prescribed,  ib. 
estoppels,  doctrine  of,  ib. 
presumptions,  100,  742. 

ATHEIST, 

incompetent  as  a  witness,  30. 
ATTACHMENT, 

witness  liable  to,  for  non-attendance  upon  subpoena,  103. 
ATTESTING  WITNESS, 

one  at  least  must  be  called  to  prove  attested  instrument,  503. 
principle  of  the  rule,  504. 

testimony  of,  not  conclusive,  510. 

proof  upon  denial  by,  ib. 

character  of,  may  be  confirmed,  512. 

if  absent,  absence  of,  must  be  satisfactorily  accounted  for,  ib. 

proof  in  excuse  of  absence  of,  514. 

absence  of,  being  satisfactorily  accounted  for,  secondary  proof,  may  be  given, 
519. 

eflfect  of  declarations  by  deceased,  512. 

proof  where  no  attesting  witness,  529. 

by  persons  present,  or  by  proof  of  handwriting  or  acknowledgment,  ib. 

ATTORNEY, 

not  allowed  to  reveal  communication  by  client,  40,  194. 
nor  to  produce  client's  title  deeds,  112. 

debt  book  of  deceased,  admissibility  of,  474. 

entries  by  clerk  of,  in  course  of  business,  495. 
AUTRE  FOIS  ACQUIT, 

when  pleaded,  record  may  be  removed,  by  certiorari,  and  how,  257. 
how  proved  by  certified  copy,  391,  App. 
AVERMENT, 

by  whom  to  be  proved,  585. 

substantial  proof  of,  sufficient  in  general,  624.  See  tit.  Onus  Probandi — Variance. 
AWARD, 

conclusive  of  subject-matter,  349,  398. 
if  proved  to  have  been  duly  made,  ib. 
BAILIFF, 

entries  by  deceased,  admissibility  of,  479,  481. 
BANK  OF  ENGLAND, 

transfer  book  of,  may  be  proved  by  sworn  copy,  269. 
BANK  NOTE, 

duly  filed,  may  be  proved  by  sworn  copy,  269. 
BANKER, 

lodger  of,  admissible  to  show  customer  had  no  funds,  464, 
BANKRUPT, 

not  to  be  sworn  on  examination  before  commissioners,  34. 
nor  his  wife,  ib. 

declarations  by,  admissibility  of,  4G7. 
BANKRUPTCY, 

jiower  of  court  of,  to  compel  attendance  of  witnesses  and  production  of  docu- 
ments, 108,  110. 

proof  of  proceedings  in,  2(;4. 

notices  in  Gazette  sufficient,  280. 

depositions  in,  conclusive  in  what  cases,  418. 


INDEX.  •       893 

BAPTISM, 

statement  ia  register  of,  inadmissible  to  prove  age,  254,  299. 

public  registers  of,  admissible,  296. 

statutes  relating  to  registers  of,  ib.  n. 

register  of,  no  proof  of  identity,  299. 

not  provable  by  register  of  foreign  chapel,  300. 

registers  of,  made  evidence  by  3  &  4  Vict.  c.  92,  301.     See  tit.  Registers. 

BARGAIN  AND   SALE, 

copy  of  enrolment  of,  admissible,  576. 

BASTARDY, 

admissibility  of  entries  respecting,  in  parish  register,  298,  299. 
judgment  in,  effect  of,  371. 

BEGIN, 

right  to,  on  trial  of  action,  595,  605. 

BELIEF, 

examination  of  witnesses  as  to  religious,  171. 

founded  on  facts  within  knowledge  of  witness  admissible,  173. 

BEST  EVIDENCE, 

rule  that  the  best  attainable  evidence  must  be  produced,  641. 

rule  comparative,  and  relates  to  quality  of  evidence,  not  to  quantity,  643. 

does  not  apply,  unless  the  evidence  proposed  be  of  inferior  degree,  644. 

nor  exclude,  unless  superior  evidence  fails,  ib. 

or  is  unattainable,  645. 

or  a  mere  negative  is  to  be  proved,  ib. 

or  where  no  presumption  of  fraud  arises,  646. 

or  in  case  of  admissions,  648. 
but  excludes  oral  evidence  respecting  written  instruments,  ib. 

except  to  defeat  it  on  ground  of  fraud  or  mistake,  ib. 

or  to  apply  it  to  proper  subject  matter,  ib. 

or  to  explain  foreign,  local,  or  technical  terms,  649. 

or  to  rebut  extrinsic  presumptions,  ib. 

BIBLE, 

entries  in  family,  how  far  admissible  in  pedigree,  45, 

BILL  IN  CHANCERY, 

not  in  evidence  as  to  facts  alleged  in  it,  439. 

BILL  OF  EXCEPTIONS, 

may  be  tendered  where  party  dissatisfied  with  ruling  of  the  court,  790. 

provision  for,  by  stat.  13  Edw.  I.,  c.  31,  791. 

should  be  tendered  at  the  trial,  793. 

form  of,  794. 

course  of  procedure  upon,  795. 

BILL  OF  EXCHANGE, 

notice  of  dishonor  of,  why  evidence,  95. 

acceptance  of,  in  payment  of  goods  sold,  evidence  of  fact  of  sale,  622. 

where  evidence  that  acceptor  knew  payee  to  be  a  fictitious  per- 
son, 623. 
and  that  endorsee  had  general  authority  to  fill  up  bills  in  name 
of  fictitious  payee,  ib. 
a  collection  of  forged,  not  evidence  in  trial  for  forgery,  unless  the  bill  in  ques- 
tion proved  to  be  part  of  the  collection,  ib. 

BILL  TO  PERPETUATE  TESTIMONY, 
in  what  cases  it  lies,  427. 

Stat.  5  &  6  Vict.  c.  69,  provisions  as  to,  428. 

BIRTH, 

registry  of,  evidence  by,  297. 

entry  of,  in  midwife's  books,  when  evidence,  65,  475. 

place  of,  not  proved  by  register  of  baptism,  289. 

unless  added  to  it,  under  the  registration  act,  ib.  n. 


894  INDEX. 

BISHOP, 

endowment  by,  when  evidence,  294. 
register  of,  evidence  as  to  custom,  309. 

and  of  exercise  of  rigiit  to  collate,  ib. 

extracts  from  evidence  as  to  appointment  of  parish  officers,  11. 

books  of,  309,  n. 

BOOKS,  EVIDENCE  BY, 
of  public  history,  97. 
of  parish,  303. 
of  navy  office,  305. 
of  ships,  ib.,  310. 
log,  of  man-of-war,  ib. 
of  excise  and  customs,  295,  306. 
of  public  companies,  307,  452,  456. 
of  Queen's  Bench  and  Fleet  Prisons,  308. 
of  auditor  of  bishop,  283. 
of  chapter  clerk,  ib. 
of  bishop,  309,  n. 
poll  of  elections,  ib. 
of  corporations,  309,  452,  455. 
of  Queen's  Bench  office.  309. 
kept  by  order  of  chancellor,  310. 
of  the  clerk  of  the  peace,  ib. 
of  Heralds'  office,  311. 
of  shop-keeper,  493. 

BOUNDARY, 

evidence  of,  by  reputation,  47,  49,  63. 
perambulations  evidence  of,  50. 

BULL,  PAPAL, 

admissibility  of,  294. 

BURIAL, 

public  register  of,  proof  by,  297. 

BUSINESS, 

entries  and  declarations  made  in  the  course  of,  admissibility  of,  65,  86,  465, 
487,  492.     See  tit.  Declarations — Entries. 
CALENDAR, 

judicially  noticed  by  the  courts,  738. 

CASE, 

for  counsel's  opinion,  recital  of  facts  in,  when  admissible,  550. 
special,  sufficient  if  court  can  infer  the  facts  from  it,  765. 

CAUSE  OF  ACTION, 

plaintiff  may  recover  on,  not  stated  by  counsel,  615. 

CAUSE  PROBABLE, 

when  a  question  of  law,  781. 
when  of  fact,  ib. 
CERTAINTY, 

degrees  of,  attainable,  53. 
CERTIFICATE, 

admissibility  of,  when  made  by  persons  in  authority,  294. 
of  indictments,  convictions,  and  acquittals,  295  «.,  391. 
also  copies  by  officers  of  court,  295,  391,  398. 
without  proof  of  seal,  stamp,  or  signature,  296,  391. 
stats.  8  <fe  9  Vict.  c.  113,  14  &  15  Vict.  c.  99,  s.  13,  t6. 
of  returns  to  Parliament  under  7  &  8  Will.  III.  295. 
of  local  customs,  effect  of,  736. 

CERTIORAill, 

removal  of  a  record  by,  257. 
CHALLENGE, 

of  a  juror,  209. 


INDEX.  895 

CHANCERY, 

bill  in,  not  evidence  as  to  facts  alleged,  439. 
answer  in,  evidence  as  admission  against  party  making  it,  440. 
depositions  in,  admissibility  of,  428,  432. 
preparatory  proofs  necessary,  430. 

CHAPELS, 

public  registers  of,  admissibility  of,  301. 

CHARACTER, 

presumption  from,  in  criminal  cases,  75. 

witnesses  to,  not  usuallj-  cross-examined,  197. 

of  witness,  how  impeached,  230. 

by  general  evidence  only,  237. 

inquiry  necessary  previous  to  impeaching,  238. 

where  it  is  relevant  to  the  issue,  241. 

as  in  action  for  seduction,  ih. 
cannot  be  impeached  by  party  calling,  244. 
when  impeached,  may  be  supported,  252.     See  tit.   Cross-examination — Witness. 

CHARGES, 

to  juries,  observations  on,  810. 

CHARTER, 

ancient,  may  be  explained  by  extrinsic  evidence,  695. 

CHARTULARY, 

of  abbey,  proper  custody  of,  528. 

of  what,  and  when  evidence,  546,  549. 

CHILD, 

cannot  give  evidence  unless  sworn,  30,  33. 

may  be  examined  by  the  court  as  to  competency  as  a  witness,  117. 

trial  in  criminal  cases  may  be  postponed  to  instruct  in  nature  of  an  oath,  ib. 

dying  declarations  of,  when  admissible,  32,  n. 
CHIROGRAPH, 

of  fine  admissible,  294. 

CHRONICLES, 

of  history,  not  admisible  to  prove  particular  facts,  314. 

but  admissible  to  prove  matters  relating  to  the  kingdom  at  large,  ib. 
See  tit.  History. 

CIRCUMSTANCES, 

when  conflicting,  mode  of  inquiry,  877,  879. 

rejection  of,  when  inconsistent  with  established  facts,  878. 

frauds  in,  kinds  of,  ib. 

CIRCUMSTANTIAL  EVIDENCE, 
grounds  of,  77,  841. 
to  what  extent  admissible,  81. 
ought  not  to  supersede  direct,  866. 
comparison  of,  with  direct,  875. 
distinction  of,  from  a  mere  presumption,  839. 
caution  respecting  the  use  of,  840. 
relations  between  cause  and  effect,  841. 
force  of,  842. 

force  of  probability  derived  from  many  independent  proofs,  853. 
presumption  from  omission  to  produce  evidence,  8^6,  846. 

from  substitution  of  weaker  for  stronger  evidence,  846. 

from  spoliation,  847. 
connection  between  conduct  and  intention,  849,  851. 
from  ordinary  experience,  850. 

from  absence  of  evidence  to  support  other  hypothesis,  851. 
from  coincidence  of  many  inconclusive  circumstances,  852. 
different  kinds  of  coincidences,  844. 
independent  and  dependent  circumstances,  851. 
essentials  to  circumstantial  proofs,  856. 


896  INDEX. 

CIRCUMSTANTIAL  EVIDENCE.— Con^mwerf. 
established  of  the  facts,  856. 
consistency  of  facts  with  hypothesis,  859. 
conclusive  tendency  of  circumstances,  ib. 
circumstances  should  exclude  every  other  hypothesis,  862. 
where,  leaves   it  indifferent  which  of  two  hypotheses   it  proves    insuflBcient, 

860. 
when  mere  coincidences  sufficient,  861. 
test  of  the  conclusive  tendency  of  evidence,  ib. 
inconclusive  circumstances,  when  rendered  conclusive,  862. 
corpus  delicti  must  be  fully  proved,  ib. 
inquiry  as  to  other  hypotheses,  863. 
conclusiveness  of  circumstances  to  be  judged  of  by  jury,  ib. 

CLERGYMAN, 

not  privileged  to  withhold  confidential  communication,  40. 

CLERK, 

of  counsel  or  attorney,  communication  made  to,  privileged,  40. 

of  banker,  464,  w.,  481. 

of  attorney,  admissibility  of  entries  by,  in  the  course  of  business,  495. 

CLERK  OF  THE  PEACE, 

books  of,  admissibility  of,  310. 

CLIENT, 

privilege  of,  as  to  professional  communications,  40. 
COACH, 

entry  of,  at  license  office,  no  proof  of  ownership,  311. 

COINCIDENCES.     See  Circumstantial  Evidence. 
force  of,  842. 
moral  effect  of,  845. 
effect  of,  from  ordinary  experience,  850. 

COLLATERAL  FACTS, 

admissibility  of,  67,  81,  91. 

when  admissible,  80,  90,  618. 

instances  of,  618,  623. 

cross-examination  as  to,  200. 
COLLUSION, 

judgment  may  be  avoided  by,  402. 

COLONIAL  ACTS  OF  STATE, 

proved  by  copy  under  colonial  seal,  281. 
COLONIAL  COURT, 

judgment  in,  effect  of,  346. 
proof  of,  399. 

affidavits  filed  in,  proof  of,  ib. 

seal  of,  need  not  be  proved,  ib. 
COMMERCIAL  REGULATIONS, 

of  foreign  countries,  provable  by  copy,  281. 
COMMISSION, 

inquisitions  under  public,  admissible,  287. 

COMMISSIONERS, 

books  of,  admissibility  of,  313. 

condemnation  by,  effect  of,  379.    . 
COMMON,  RIGHT  OF, 

reputation  admissible  to  prove  right  of,  48,  187. 

but  not  in  the  case  of  a  private  prescription,  ib. 
COMMONS,  HOUSE  OF, 

journals  of,  evidence  of  proceedings  by,  281. 

coi)ies  of  journals  of,  by  tlie  Queen's  printer,  &c.,  admissible,  282. 
COMMUNICATIONS  PRIVILEGED, 

rule  respecting,  40,  193. 


INDEX.  897 

COMPETENCY  OF  WITNESSES, 

time  and  mode  of  objecting  to,  114. 

examination  as  to  religious  belief,  115. 

in  case  of  infancy,  117.     See  also  tit.  Infancy — Interest. 

CONCURRENCE, 

of  circumstances,  effect  of,  853. 

CONDEMNATION, 

in  the  Exchequer  conclusive  on  all  parties,  378. 

by  commissioners  of  excise,  final,  379. 

by  foreign  Court  of  Admiralty,  conclusive  as  to  facts  stated,  381, 

CONDUCT, 

connection  between  conduct  and  motives,  849. 
presumption  from,  71,  75. 

CONFESSION, 

is  but  presumptive  evidence,  73. 

not  conclusive,  ib.  718. 
in  criminal  case  is  evidence  in  civil  action,  362. 

CONFIDENTIAL  COMMUNICATIONS, 
rule  respecting,  40,  193. 

extends  to  counsel,  and  attorneys,  and  their  clerks,  ib. 
but  not  to  physicians,  surgeons,  or  divines,  ib. 
includes  matters  of  state  policy,  193. 
and  proceedings  before  grand  jury,  ib. 

CONFIRMATION, 

of  witnesses,  when  allowed,  252. 

of  evidence  of  accomplice  necessary,  821. 

CONFLICTING  EVIDENCE, 

observations  on,  866,  869. 

CONSIDERATION, 

variance  from  allegation  of,  in  deed,  659. 

cannot  be  shown  to  be  different  from  that  expressed,  673. 

additional,  may  be  shown,  673. 

CONSISTENCY, 

of  testimony,  effect  of,  859. 

with  circumstances,  871,  877. 
with  written  documents,  872. 

CONSTRUCTION, 

of  written  document  is  matter  of  law,  786. 

not  to  be  varied  by  extrinsic  evidence,  668. 
CONTINUANCE, 

presumption  of,  76,  760. 
CONTRACT, 

right  to  begin  in  actions  on,  599. 

variation  from  terms  of,  630. 

written,  not  to  be  varied  by  parol  evidence,  651,  655.     See  tit.  Parol  Eindence. 

CONTRADICTION, 

witness  must  be  questioned  previous  to  contradiction,  238,  242. 

by  evidence  of  previous  statements,  ib. 
of  his  own  acts,  238. 

of  party's  own  witness  not  allowed,  244. 
exceptions,  244-251. 
CONVENTIONAL  EVIDENCE, 

what,  98. 
CONVERSATIONS, 

evidence  of,  should  be  received  with  great  caution,  826. 
CONVICTION, 

in  criminal  cases,  not  evidence  in  civil  action,  361. 


INDEX. 

COiiYlCTlO}^.— Continued. 

except  of  fact,  and  legal  consequences,  ib. 

so  of  inferior  courts,  368. 
of  infamous  crime  no  longer  incapacitates  witness,  117. 
certificates  of,  295,  n.,  391. 
in  rem  is  evidence,  379. 
COPY, 

of  public  documents,  when  admissible  in  evidence,  257. 
of  public  records,  257,  315. 

exemplifications,  257. 

by  authorized  officer,  261. 

office  copy,  ib. 

statutory  office  copy,  ib.,  265. 

sworn  copy,  265-271. 
of  a  copy,  not  admissible,  270. 
how  proved,  ib. 

not  admissible  when  original  produced,  271. 
of  lost  record,  proof  of,  ib. 
evidence  to  warrant  reception  of,  ib. 

certified  copy,  effect  of,  398.     See  tit.  Instruments  of  Evidence. 
COPY  EXAMINED, 

of  public  document  generally  admissible,  268,  270,  273. 
to  prove  judicial  proceedings,  265. 

in  bankruptcy,  266. 

in  Chancery,  ib. 

but  is  not  admissible  on  indictment  for  perjury,  ib. 

or  where  the  record  is  incomplete,  267. 
how  proved,  270,  550. 
of  Acts  of  Parliament,  276. 
CORONER, 

depositions  before,  not  admissible,  unless  taken  in  presence  of  prisoner,  38. 
has  power  to  bind  over  witnesses,  105. 
inquisition  by,  effect  of,  405. 
CORPORATION, 

seal  of,  proved  by  showing  that  it  is  the  official  seal,  457. 
deed  of,  proved  by  proving  official  seal,  510. 
books  of,  admissibility  of,  309,  452,  455, 

proof  of,  456. 

are  not  evidence  against  strangers,  455. 

must  be  shown  to  have  been  kept  as  such,  456. 

and  that  entries  were  made  by  the  proper  officer,  ib. 

may  be  inspected,  458. 

Stat.  5  &  6  Will.  IV.  c.  76,  ib. 
CORPUS  DELICTI, 

must  be  proved,  862. 
CORROBORATION, 

of  witness,  Avhen  allowed,  252. 
of  attesting  witness  permitted,  512. 
of  accomplice  necessary,  821. 
COUNSEL, 

not  allowed  to  divulge  professional  communications,  40,  194. 
clerk  of,  same  rule  applicable  to,  ib. 
arguments  of,  610-615. 
order  of  address,  where  several,  616. 
statement  by,  as  to  cause  of  action,  not  conclusive,  615. 
COUNTERPART, 

admissibility  of,  as  secondary  evidence,  542. 

against  i)arty  executing  it,  564. 

and  when  not  executed,  if  adversary  refuses  to  produce  original,  570. 

but  not  against  thrid  person,  except  absence  of  original  accounted  for,  570, 
577. 

of  ancient  leases,  how  far  admissible,  94. 


INDEX.  899 

COUNTY, 

how  far  judicially  noticed,  738,  n. 

COURSE  OF  BUSINESS, 

entries  made  in,  admissible,  65,  86,  465,  492. 

COURT, 

matters  judicially  noticed  by,  735-739. 

duty  of,  to  expound  law  and  decide  on  all  collateral  matters,  764,  788. 
COURT-MARTIAL, 

sentences  of,  generally  conclusive,  371,  n. 

but  Courts  of  Law  will  examine  whether  it  has  exceeded  its  jurisdiction,  ib. 
witnesses  neglecting  to  attend,  upon  subpoena,  are  liable  to  attachment,  109. 

COURT  ROLLS, 

when  evidence,  94,  308,  452,  453. 

how  proved,  454. 

proof  of,  by  copy  or  examined  entries,  ib. 

CRIMINATION,  SELF, 

witness  not  bound,  in  general,  to  criminate  himself,  41,  141,  204,  240. 
nor  to  produce  documents  which  may,  111. 

whether  he  must  answer  questions  which  tend  to  his  disgrace,  207,  213. 
if  he  does,  his  answers  are  evidence  against  him,  214. 
and  if  he  answers  in  part,  he  must  answer  the  whole,  ib.     See  tit.  Witness. 

CROSS-EXAMINATION, 

a  strong  test  of  truth,  34. 

excludes  res  inter  alios,  ib. 

does  not  exclude  judgments  in  rem,  36. 

excludes  depositions,  34. 

and  voluntary  affidavits,  34,  448. 
advantages  of,  194. 
practice  as  to,  196,  198. 
what  questions  may  be  asked  in,  197. 

as  to  writings,  198,  216,  220. 

as  to  collateral  facts,  200. 

in  order  to  discredit  witness,  207. 
upon  interrogatories,  423,  426.     See  tit.  Evidence — Witness. 

CROWN, 

public  acts  of,  how  proved,  279. 

inquisitions  by  officers  of,  404. 
CUSTODY, 

proof  of,  essential  to  reception  of  ancient  instruments,  291,  524-529. 
See  tit.  Ancie?it  Instruments — Deeds,  &c. 
CUSTOM, 

proof  of,  187,  736,  n. 

evidence  by  a  judgment,  when,  386. 
by  a  deposition,  when,  421. 

when  admissible  to  add  to  contract,  710. 

to  explain  ancient  charter,  695. 

in  one  parish  not  evidence  against  another,  619. 

when  judicially  noticed  by  the  courts,  735,  736,  n. 
CUSTOMARY  INCIDENTS, 

may  be  annexed  to  written  contract  by  parol  evidence,  710. 

CUSTOM  HOUSE,  BOOKS  OF, 

admissibility  of  entries  in,  306. 
DATE, 

of  writing,  effect  of  variance  from,  665. 

primd  facie  evidence  of  time  when  written,  758. 

DAY-BOOK, 

of  church  register,  not  evidence  when  entry  has  been  made  in  register,  298. 
DEAF  AND  DUMB, 

persons  may  give  evidence  by  means  of  interpreter,  114  n. 


900  INDEX. 

DEALING, 

presumption  from  course  of,  75. 

DEATH, 

apprehension  of,  essential  to  admissibility  of  dying  declarations,  38. 

admissibility  of  depositions  in  case  of,  Gl,  408. 

presumption  of,  where  a  person  has  not  been  heard  of  for  seven  years,  77. 

registry  of,  under  6  &  7  Will.  IV.  c.  86,  297. 

place  of,  added  to  register  under  Registration  Act,  evidence  of,  299,  n. 

of  attesting  witness  inferred  after  thirty  years,  512,  521. 

and  proof  of,  within  that  period,  renders  evidence  of  handwriting  admissi- 
ble, 519. 
DEATH-BED  DECLARATIONS, 

when  admissible  and  grounds  of  admitting,  38. 

DECLARATIONS, 

by  third  persons  when  admissible,  85,  95,  466. 

by  party  in  extremis,  38. 

accompanying  acts,  51,  87,  466. 

when  part  of  the  res  gestx,  89. 

in  case  of  pedigree,  45,  62,  188,  190. 

made  against  the  interest  of  the  party,  64. 

by  deceased  tenant,  487,  492. 

in  the  course  of  business,  65,  492,  n. 

but  only  when  the  party  is  dead,  66. 

and  must  have  known  the  facts,  ib. 
may  be  evidence  for  some  purposes  but  not  for  others,  89. 
by  strangers  in  general  not  admissible,  81. 

nor  when  ra&A^  post  litem  motam,  63,  190. 
to  be  made  by  bankrupts  and  their  wives  before  commissioners,  34. 
effect  of  in  evidence,  487. 
And  see  tit.  Entries — Hearsay. 

DECREE  IN  CHANCERY, 
proof  of,  393. 
effect  of,  398. 

DEEDS, 

production  of,  102-113,  499. 

attorney  of  party  not  compelled  to  produce  his  client's,  112. 

but  an  agent  may  be  examined  as  to  their  contents,  ib. 
alteration  in,  must  be  explained  by  party  producing,  500. 
mutilation  of,  is  prima  facie  evidence  of  cancellation,  501. 
should  be  properly  stamped,  503. 

non-enrolment  of,  must  be  proved  by  party  objecting,  ib. 
legal  requisites  of,  must  be  proved,  ib. 
proof  of,  by  attesting  witness,  504-507. 

application  of  the  rule,  507. 
formerly  not  superseded  by  admission  of  party,  505. 

but  now  admissions  of  party  are  evidence  of  contents  of  a  document  with- 
out producing  it,  506. 
execution  of,  {)roof  of,  505,  508,  573. 

by  agent,  5G5. 
sealing  of,  proof  of,  508. 
delivery  of,  proof  of,  509. 

may  be  presumed  when  produced  from  custody  of  party  who  has  acted 
under  them,  ib. 
no  particuhir  form  of  delivery  necessary,  ib. 
take  effect  from  delivery,  529. 
proof  of,  on  denial  by  subscribing  witness,  510. 
excuse  for  the  absence  of  subscribing  witness  of,  512. 
proof  in  excuse  of  absence  of  .subscribing  witness  of,  514-518. 
secondary  proof  in  the  absence  of  subscribing  witness  of,  519. 
if  thirty  years  old  require  no  i)roof,  521. 

except  of  coming  from  proper  custody,  524-529. 
date  o\\  prim(i  facie  evidence  of  time  of  execution,  758. 


INDEX.  901 

DEETiS— Continued. 

proof  of,  where  no  attesting  witness,  529. 

in  case  ot  loss,  530. 
evidence  of  search  for,  532-540. 

of  execution  of  lost,  541. 

unnecessary  where  proof  of  e.xecution  would  have  been  dispensed  with, 

542. 
or  where  loss  or  absence  is  occasioned  by  adversary,  542,  565,  571. 
proof  of,  by  secondary  evidence,  542-550. 

when  in  possession  of  adversary,  550,  565,  571. 

or  of  party  in  privity  with  him,  553. 
notice  to  produce,  must  be  proved,  551. 

by  affidavit  of  attorney  or  clerk,  App. 

when  unnecessary,  561. 
proof  of,  coming  from  adversary's  possession,  565. 

if  not  produced  by  adversary,  proof  must  be  given  as  in  case  of  loss,  568. 
admission  of,  under  judge's  order  or  notice,  571,  App. 

by  party  or  agent,  572. 

by  estoppel,  90,  460. 
proof  of,  by  enrolment,  573,  576. 

b}^  recital,  577. 
reading  of,  not  precluded  by  intrinsic  objection,  578. 
the  whole  to  be  read,  579. 
effect  of,  not  to  be  varied  by  parol  evidence,  655-665. 

but  may  be  explained,  648,  680,  695. 
construction  of,  700.     See  tit.  Evidence — Witness — Written  Instrument,  ^'C. 

DEFAULT, 

judgment  by,  effect  of,  342,  n. 
DEFECT, 

supplying,  at  close  of  case,  605. 

DEFECTIVE  EVIDENCE, 

distinguished  from  secondary,  733. 
DEGRADATION, 

how  far  witness  compelled  to  answer  questions  tending  to  his,  200-213.     See 
tit.   Witness. 
DELIVERY  OF  DEED, 

proof  of,  509. 

no  particular  form  of,  requisite,  ib.     See  tit.  Deeds. 

DEMEANOR, 

of  witness  a  test  of  credibility,  871.     See  tit.  Witness. 
DEMURRER, 

when  an  admission,  451. 

to  evidence,  effect  of,  797. 
DEPOSIT, 

proof  as  to  place  of,  to  render  ancient  document  admissible,  291,  524.     See  tit. 
A7icient  Instruments — Deeds,  ^c. 

DEPOSITIONS, 

of  witnesses,  when  admissible,  61,  408. 
of  deceased  witness  in  former  proceedings,  61. 
inadmissible,  when  witness  can  be  produced,  409. 
absence  or  death  of  witness  necessary,  ib. 
indemnity  of  parties  requisite,  412. 

and  of  deponent,  431. 

but  not  of  cause  of  action,  414. 
identify  of  subject-matter  necessary,  ib. 

except  as  matter  of  reputation  against  other  parties,  ib. 

and  in  criminal  cases,  ib. 
privity  of  claim  necessary  to  admissibility  at  law,  415. 
must  have  been  made  in  a  legal  proceeding,  ib. 

and  only  admissible  when  the  verdict  or  judgment  in  that  proceeding  would 
be  evidence,  ib. 


902  INDEX. 

DEPOSITIONS— Con/mwcrf. 

in  Spiritual  Courts,  whether  admissible,  417,  434. 

in  courts  not  of  record,  ib. 

in  bankruptcy,  when  and  of  what  evidence.  418. 

when  evidence  to  prove  reputation,  421. 

of  witnesses  abroad,  423. 

Stat.  13  Geo.  III.  c.  63,  and  1  Will.  IV.  c.  22,  424. 
mode  of  procedure  under,  26. 

in perpetuam  memoriam,  427. 

Stat.  5  &  6  Vic.  c.  69,  428. 

in  Chancery,  419,  427,  430. 

not  admissible  when  extra  Judicial,  416. 
not  when  ma.de  post  litem  motavi,  421. 
nor  unless  party  had  power  to  cross-examine,  61,  418. 

when  excluded  by  leading  interrogatories,  433. 

preparatory  facts,  proof  of,  429. 

how  proved,  432. 

by  examined  copy,  ib. 

office  copy  of,  admissible  in  Court  of  Equity  but  not  in  Court  of  Law,  295,  432. 

cross-examination  upon,  practice  as  to,  228. 

are  evidence  to  contradict,  but  not  to  support,  witness,  423. 

on  former  trial,  proof  of,  408,  n.,  429. 

before  coroner,  38. 

before  justices,  when  admissible,  38,  410,  417. 
DEPRIVATION, 

effect  of  sentence  of,  371. 
DESCRIPTION, 

when  party  bound  by,  629. 
DIRECT  EVIDENCE.     See  Evidence. 

kinds  of,  21. 

consideration  of,  by  jury,  820. 

force  of,  in  conflict  with  circumstantial,  828. 

DISCREPANCIES, 

in  evidence,  effect  of,  830. 

DISGRACE, 

whether  witness  bound  to  answer  questions  tending  to,  207,  213.     See  tit. 
Witness. 
DISOBEDIENCE, 

of  subpoena,  liability  for,  103. 

will  not  warrant  reception  of  parol  evidence,  112. 

except  where  the  instrument  has  been  transferred  fraudulently,  113. 

DISSENTING  CHAPEL, 

register  of,  how  far  admissible,  300. 
DIVISIBILITY, 

of  averment,  when  allowed,  626. 
DIVORCE, 

sentence  of,  effect  of,  375. 

avoided  by  collusion,  402, 
DOCUMENTARY  EVIDENCE, 
relative  excellence  of,  825, 
DOCUMENTS, 

production  of,  how  secured,  109-113. 
contents  of,  not  to  be  stated,  176. 

except  where  very  volumnious,  ib. 
nor  cross-examined  to,  198. 
admissibility  and  proof  of  public,  272,  296, 
jiarlly  i)ublic  and  partly  private,  452. 
private,  459. 
legal  requisites  of,  proof  of,  603. 
proof  of,  in  case  of  loss,  531. 

when  in  possession  of  adversary,  551,  571. 


INDEX.  903 

DOCUMENTS— Con^mwcrf. 
notice  to  produce,  454. 
admissioa  of,  under   judge's  order,  571. 
notice  to  admit,  App. 

admission  of,  under,  how  proved,  App. 
consequence  of  refusal  to  admit  after  notice,  App. 
the  whole  of,  to  be  read,  579-583. 

credit  due  to  whole  or  part  to  be  judged  of  by  jury,  583. 
construction  of,  matter  of  law,  786.     See  tit.  Instrumenls  of  Evidence — Subpoena 

duces  tecum. 

DOMESDAY    BOOK, 

proof  by,  284. 

Sir  H.  Ellis's  work  on,  ib.  n. 

DUCES  TECUM,  110.     See  Subpoena. 
DUCHY  OFFICER, 

book  of,  admissibility  of,  312. 

DUPLICATE  ORIGINALS, 

must  be  accounted  for  before  secondary  evidence  allowed,  542. 

DYING  DECLARATION, 

admissibility  of,  32,  38. 

of  child,  when  admissible,  32,  n, 

EAST  INDIA  COMPANY, 
books  of,  proof  of,  45G. 

ECCLESIASTICAL  COURT, 
sentence  of,  proof  of,  393. 

effect  of,  373. 
books  of,  admissibility  of,  394. 
depositions  in,  admissibility  of,  417,  434. 
EJECTMENT, 

right  to  begin  in  action  of,  603. 
law  notices  the  real  parties  in,  326,  329. 
wife  of  lessor  in,  when  admissible.     See  Interest, 
ENJOYMENT, 

evidence  from  acts  of,  50. 
ENROLMENT, 

admissibility  of,  in  proof  of  instrument,  283. 
or  of  certified  copy,  ib. 
proof  of  deed  by,  503,  573. 
ENTRIES, 

by  third  persons,  when  admissible,  463. 

principle  of  admissibilit}',  464,  480. 
when  made  against  the  interest  of  the  party,  64,  474, 
by  deceased  occupier,  480. 

steward,  65,  479,  481. 

bailiffs,  receivers,  ib. 

attorney  in  his  bopks,  474. 

rector  of  receipt  of  tithes,  476. 
when  made  in  the  usual  course  of  business,  65,  86,  465,  492. 

by  churchwardens,  65. 

parish  officer,  480. 

midwife,  65,  475. 

banker's  clerks,  464,  tj.,  481. 
accompanying  or  connected  with  acts,  467.     See  tit.  Declarations, 

EQUITY, 

bill  in,  not  evidence  of  facts  alleged,  439. 
answer  in,  admissible  against  party  making  it,  440. 
depositions  in,  admissibility  of,  428,  432. 
ERASURE, 

in  instrument, explanation  of,500.  See  tit.  Deeds — Documents —  Written  Instruments. 


904  INDEX. 

ESTOPPEL, 

general  rule  as  to,  09. 

by  deed,  99,  460. 

by  fraud,  100. 

by  record,  365. 

by  admission  under  seal,  459. 

of  party,  459,  462. 

binds  all  privies,  462. 

when  it  creates  an  interest  in  land,  461. 

when  binding  on  the  court,  462. 

deed  poll  does  not  amount  to,  461. 

when  to  be  pleaded,  343,  461. 

EVIDENCE, 
what,  12. 

division  of  the  subject,  14. 
general  principles  of  law  of,  15. 

1.  natural  reason. 

2.  artificial  policy, 
of  natural  reason, ib. 
ordinary  means  of  inquiry,  are 

1.  by  information. 

2.  by  experience,  17. 

and  may  be  divided  into  two  classes. 

1.  direct,  21. 

2.  indirect,  ib. 

reasons  for  adopting  excluding  principles,  18. 
direct  evidence  is  of  two  kinds,  21. 

1.  immediate. 

2.  mediate. 
imtnediate  evidence. 

principles  which  govern  reception  of,  21. 
administration  of  oaths,  22,  29. 

which  exclude  those  who  might  not  be  bound  by  oaths,  ib. 

by  reason  of  turpitude  or  interest,  22. 
nature  of  the  interest  which  formerly  excluded,  23. 

exceptions,  25,  27. 
belief  essential  to  taking  an  oath,  29. 
form  of  oath,  30. 
must  be  judicial,  31. 
exceptions  to  taking  oath,  32. 
declarations. fM  extremis,  ib. 
affirmations  by  Quakers,  &c.,  ib. 
test  of,  by  cross-examination,  34. 
which  excludes  hearsay  evidence,  35. 

except  dying  declarations,  32,  48. 
mediate  evidence,  43. 

in  general  only  admissible  on  failure  of  better  evidence,  ib. 
reputation,  wlien  admissible,  ib. 

1.  must  be  of  jjublic  nature,  47. 

2.  must  be  general,  49. 

3.  must  be  supported  by  acts  of  enjoyment,  50. 
admissions  by  parties  or  privies,  ib. 
declarations  accompanying  acts,  51. 

7nediate  .secondary  evidence,  53.     See  tit.  Secondary  Evidence. 
in  general  inadmissible,  56-61. 
under  what  sanctions  admissible,  61. 
traditionary  evidence,  ib. 
in  what  other  cases  admissible,  53,  61. 
indirect  evidence. 

necessity  for  resorting  to,  67,  79. 

presumptions  from  experience,  70. 
from  conduct,  71. 


INDEX.  90  J 

EVIDENCE.— Con^mM««f. 

indirect  evidence, 

as  to  motives,  ib. 
from  course  of  dealings,  75. 
as  to  continuance,  76. 
circumstantial  evidence.     See  tit.  Circumstantial  Evidence. 
principles  of  admissibility  of,  67. 
extent  of  the  principle,  80. 
res  inter  alios  acta,  rule  as  to,  81. 
what  it  excludes,  ib. 

does  not  exclude  evidence  of  acts  and  admissions  of  parties,  85. 
of  lavrs  and  customs,  ib. 
of  facts  vrhich  have  legal  operation,  86. 
eflFect  on  declarations  and  accompanying  acts,  87. 
collateral  facts,  90,  G18. 
ancient  instruments,  admissibility  of,  93. 
must  come  from  proper  repository,  93,  291,  524. 
must  be  free  from  suspicion,  93. 
supported  by  acts  of  enjoyment,  ib. 
declarations  admissible  in  explanation  of,  95. 
evidence  on  questions  of  skill,  &c.,  &c.,  95. 

exclusion  on  principles  of  artificial  policy  of  secondary  evidence,  39. 
See  tit.  Secondari/  Evidence. 

of  that  of  husband  and  wife,  ib.     See  tit.  Interest. 
of  confidential  communications,  40. 
of  evidence  tending  to  crimination  of  witness,  41. 
of  matters  on  grounds  of  state  policy,  ib. 
artificial  evidence, 

where  necessary,  96. 
rolls  of  Parliament,  records,  &c.,  97. 
weight  annexed  to,  73. 
verdicts,  &c.,  ib. 
conventional  evidence, 

how  far  interfered  with  by  law,  98. 
as  to  manner,  form,  and  effect,  ib. 
estoppels,  99. 
presumptions  of  law,  747. 
of  law  and  fact,  549. 
direct  evidence, 

on  what  its  force  depends,  820. 

integrity  of  witnesses,  ib. 
exceptionable  witnesses  are  competent,  821. 
but  require  confirmation,  ib. 
degrees  of  evidence, 

full  proof,  when  requisite,  817. 
mere  preponderance,  when  sufficient,  818. 
prima  facie  and  conclusive  evidence,  819. 
evidence  to  be  weighed  by  jury,  820. 
effect  of  partial  incongruities,  866. 
positive  and  negative  evidence,  867. 
conflicting  evidence,  869. 
process  of  comparison,  871. 

testimony  of  false  witness  to  be  rejected  altogether,  873. 
except  when  given  in  favor  of  the  adverse  party,  ib. 
effect  of  false  testimony  in  other  evidence,  ib. 

comparison  of  direct  and  circumstantial  evidence,  874.  See  tit.  — Best 
Evidence — Hearsay — Instrurnents  of  Evidence — Parol  Evidence — Secondary 
Evidence —  Written  Evidence,  ^c. 

EXAMINATION, 

of  witnesses,  in  chief,  166. 

as  to  what,  172. 
of  witnesses  as  to  actual  knowledge,  172. 

52 


006  INDEX. 

EXAMINATION.— Cow^inwerf. 
belief,  172. 

judgment  on  questions  of  skill,  96,  173. 
foreign  law,  173. 
gentral  results  of  documents,  ib. 
matters  of  confidence,  191,  194. 
on  interrogatories,  424. 
mode  of  procedure,  426. 
b}-  magistrates,  106. 
for  prisoners  to  be  taken  on  oath,  33. 
of  bankrupts  and  their  wives,  before  commissioners  not  to  be  upon  oath,  34. 
See  tits.  Cross-examination — Depositions — Witness. 
EXCEPTIONS,  BILL  OF, 

course  of  procedure  upon,  790,  795. 
EXCHEQUER, 

condemnations  in,  effect  of,  378. 
EXCISE  AND  CUSTOMS, 

books  and  papers  of,  when  evidence,  306. 
condemnation  by  commissioners  of,  effect  of,  379. 
EXECUTION. 

proof  of,  505,  508,  573. 

ancient  instruments  admissible  without  proof  of,  93. 
of  lost  instrument,  proof  of,  541. 
EXEMPLIFICATIONS, 

different  kinds  of,  257,  259. 
why  received  in  evidence,  ib. 
proof  of,  ib. 
EXPENSES, 

of  witness  in  civil  cases,  103. 
in  criminal  cases,  105. 
EXPERIENCE, 

presumption  arising  from,  51. 
in  favor  of,  762. 
EXPLANATION, 

admissibility  of  declaration  for  purpose  of,  95. 
FACTS, 

general  rule  as  to  what,  are  evidence,  78. 

collateral,  admissibility  of,  90. 

real,  what  are,  91. 

spurious,  how  detected,  92. 

context  of,  must  be  consistent,  ib. 

jury  must  find  facts,  not  evidence,  765. 

historical,  may  be  proved  by  reputation,  49. 

and  by  generally  received  historical  account  of  them,  ib. 
FINE, 

proof  of,  260,  577. 
FLEET  PRISON, 
books  of,  299. 
FORCE  OF  TESTIMONY, 

observations  on,  832. 
FOREIGN  ATTACHMENT, 

custom  of,  proof  of,  73G,  n. 
FOREIGN  COURT, 

effect  of  judgment  of,  346-355. 
proceedings  and  judgments  of,  how  proved,  399. 
proceedings  of,  when  judicially  noticed,  740. 
FOREIGN  JUDGMENTS, 
how  [iroved,  399. 

how  far  open  to  examination,  355-358. 
when  conclusive,  346-352. 


INDEX.  907 

FOREIGN  JUDGMENTS.— Con<m!<erf. 

general  position;  that  when  conclnsive  in  the  country  where  pronounced  they 
are  also  conclusive  in  this  country,  353. 

if  relied  on  as  an  estoppel,  must  be  pleaded  as  such,  ib. 

impeachable  for  apparent  error,  354.     See  tit.  Judgments. 
FOREIGN  LAW, 

proper  proof  of,  is  by  persons  conversant  with  it,  175. 

FORMER  TRIAL, 

evidence  on,  when  admissible,  433. 
FRAUD, 

when  judgment  may  be  impeached  on  ground  of,  384. 
when  not,  385. 

when  evidence  of,  admissible  to  impeach  instruments,  672. 

presumption  of,  ground  of  rule  respecting  best  evidence,  642. 

when  a  question  of  law  and  when  of  fact,  784. 

presumption  in  case  of,  847. 

GAZETTE, 

evidence  of  acts  of  state  by,  279. 

proclamation  of  peace,  ib. 

quarantine,  ib. 

reprisals,  ib. 
when  admissible  to  prove  notice,  280. 
not  evidence  of  private  matters,  ib. 
judicially  noticed  by  the  courts,  739,  n. 

GENERAL  EVIDENCE, 

when  admissible,  645. 
GRAND  JURY, 

evidence  given  before,  not  to  be  revealed,  193. 
GUARDIAN, 

is  now  admissible  as  witness  for  ward,  132. 

answer  of,  in  Chancery,  not  evidence  against  infant,  442. 
GUERNSEY, 

copy  register  of  baptism  of,  inadmissible,  300. 

HABEAS  CORPUS  ad  testificandum, 

provisions  of  stat.  44  Geo.  III.,  c.  102,  respecting,  104. 

HEARSAY, 

inferior  nature  of  such  testimony,  43. 

in  general  is  not  admissible,  43,  56,  61.  ^ 

when  admissible,  43,  61,  89,  185,  191. 

reasons  for  its  admission,  43. 

general  reputation,  what,  43. 

admissible  when  the  fact  is  of  public  nature,  ib. 

particular  subjects  to  which  such  evidence  is  applicable,  44,  89,  186. 

to  prove  a  man's  character,  47. 

pedigree  and  state  of  family,  45,  47,  188. 

prescriptive  or  customary  rights,  matters  of  public  notoriety,  47. 

1.  the  facts  must  be  of  a  public  nature,  47,  62. 

such  as  right  of  common,  48. 

boundaries  between  parishes  or  manors,  &c.,  49. 
historical  facts,  ib. 

2.  must  be  as  to  general  and  not  particular  facts,  ib.,  62. 

evidence  of  perambulations,  50. 

3.  the  reputation  should  be  supported  by  acts  of  enjoyment,  50,  63,  190. 
admissions  by  parties,  50. 

declarations  accompanying  acts,  51. 

by  trader  deserting  house  in  contemplation  of  bankruptcy,  ib. 

rule  not  applicable  to  declarations  accompanying  irrelevant  acts,  52. 

declarations  made  against  interest,  64. 

in  the  course  of  business,  65. 
See  tit.  Declarations — Evidence — Reputation — Tradition,  SfC, 


908  INDEX. 

HERALD'S  BOOKS, 

admissibility  of,  in  proof  of  pedigrees,  &c.,  312. 

HISTORICAL  FACT, 

proof  of  a  particular,  49. 

HISTORY, 

books  of  public,  admissibility  of,  49,  97,  314. 

HOUSES  OF  PARLIAMENT, 

journals  of,  admissibility  of,  281. 

eS'ect  of,  282.     See  Commons^  House  of — Lords,  House  of. 

HUMAN  TESTIMONY, 

general  character  of,  831. 
HUSBAND  AND  WIFE, 

cannot  be  witnesses  for  or  against  each  other,  29,  39,  138,  194,  513,  n. 
unless  both  be  parties  to  the  proceeding,  139. 
or  it  be  a  proceeding  in  the  County  Court,  ih. 

but  cannot  be  witnesses  for  or  against  each  other  in  a  criminal  proceeding, 
138.     See  Interest —  Wife. 
HYPOTHESIS, 

coincidences  between  facts  and,  843. 

IDENTITY, 

of  parties,  essential  to  be  proved  before  judgment,  &c.,  admissible,  324. 
also  of  fact,  333. 
test  of,  ib. 
IGNORANCE, 

of  witness,  how  far  ground  for  excluding,  114. 

IMPROPRIATION, 

evidence  to  prove,  294. 

INCOMPETENCY, 

to  testify,  different  kinds  of,  114. 
time  of  objecting  on  ground  of,  ib. 
examination  as  to,  lid.     See  tit.  Interest. 

INCONSISTENCY, 

of  testimony,  effect  of,  829. 
INDIA, 

examination  of  witnesses  resident  in,  424; 
INDICTMENT, 

proof  of,  391. 
INDIRECT  EVIDENCE, 

what,  21. 

admissibility  of,  67. 
INDUCEMENT, 

variance  in  matter  of,  626,  645. 
INFAMY, 

effect  of,  on  competency  of  witness,  117. 

no  longer  ground  of  exclusion,  118. 

INFANCY, 

incompetency  to  testify  from,  117. 
onus  2}J'cbandi  on  plea  of,  590,  591,  n. 

INFERIOR  COURT, 

judgment  of,  proof  of,  358,  396. 
efi'ect  of,  358,  368. 
how  far  examinable,  ih. 
seal  of,  must  in  general  be  proved,  740. 

INFORMATION, 

before  magistrate,  proof  of  loss  of,  539 
INNOCENCE, 

presumptions  in  favor  of,  755. 


INDEX.  909 

INQUISITIONS, 

admissibility  of,  289,  404,  407. 

analogous  to  adjudications  in  rem,  404. 

under  public  commissions,  286,  407. 

valor  beneficiorum,  285. 

inquisitiones  nonnrum,  286. 

extent  of  Crown  lands,  287. 

post  mortem,  288. 

not  necessary  that  evidence  on,  should  have  been  given  on  oath,  289. 

taken  without  authority  inadmissible,  289,  407. 

of  lunacy,  admissible  but  not  conclusive,  379,  406. 

by  coroner,  405. 

parties  affected  by,  may  traverse,  404. 

whilst  unreversed,  conclusive  as  to  property,  405. 
INSANITY, 

when  it  renders  witness  incompetent,  114. 
INSOLVENT, 

declarations  by  admissibility  of,  467. 
INSOLVENT  COURT, 

power  of,  to  compel  attendance  of  witnesses  and  production  of  documents,  108, 
110. 

proof  of  proceedings  in,  265. 

INSTRUMENTS  OF  EVIDENCE, 
what  they  are  in  general,  102. 

1.  Oral  Evidence. 

mode  of  enforcing  attendance  of  witnesses,  103. 
expenses  must  be  tendered,  104,  106. 
consequences  of  disobedience,  104,  106. 
liability  to  attachment,  104,  106. 

and  damages  in  an  action  on  the  case,  ib, 
Stat.  5  Eliz.  c.  9,  s.  12,  ib. 
where  witness  is  in  custody,  104. 
where  under  restraint,  105. 

sailor  on  board  man  of  war,  ib. 
mode  of  enforcing  attendance  in  criminal  cases,  ib. 
justices  may  bind  over  by  recognizance,  ib. 

Stat.  11  &  12  Vict.  c.  42,  ss.  16,  20,  ib.,  107. 
coroner  also,  in  cases  of  murder  and  manslaughter,  ib. 

Stat.  7  Geo.  IV.  c.  64,  s.  4.,  ib. 
witnesses  for  defendant  in  criminal  cases  may  be  subpoenaed,  106. 

liable  to  attachment  for  non-attendance  upon  subpoena,  107. 
mode  of  enforcing  attendance  at  sessions,  and  in  inferior  courts,  107-109. 
mode  of  enforcing  production  of  documents,  110. 
objections  in  exclusion  of  oral  evidence,  114,  et  seq. 

2.  Written  Evidence. 
written  instruments  are — 

1.  of  a  public  nature,  254. 

2.  of  a  mixed  nature,  ib. 

3.  of  a  private  nature,  ib. 
1.  Pdblic  Documents 

are  either  judicial  or  not  judicial,  256. 

documents  of  a  public  nature,  how  procured  and  proved,  256,  315. 
records  are  proved  by  mere  production,  or  by  copy,  257. 

copies  or  records  are  either  exemplifications,  copies  made  by  authorized  officer, 
or  sworn  copies,  ib. 

proof  of  public  documents  by  exemplification,  257.    ■• 

exemplifications  under  the  great  seal,  ib. 

under  the  seal  of  a  particular  court,  258. 

copies  by  authorized  persons,  260. 

proof  by  office  copy,  261. 

by  statutory  office  copy,  261-265. 

by  sworn  copy,  265-268. 


910  INDEX. 

INSTRUMENTS  OF  EVIDENCE— Conti7iued. 
when  admissible,  268-270. 
how  proved,  270. 

copy  never  admissible  when  original  is  produced,  271. 
lost  record,  how  proved,  ib. 

public  documents  not  judicial,  admissibility  of,  273. 
Acts  of  Parliament,  how  proved,  ib. 

public,  require  no  proof,  274. 
private  Acts  of  Parliament  must  be  proved,  276. 

but  admissible,  if  purporting  to  be  printed  by  Queen's  printers, 
227. 
recitals  in  Acts  of  Parliament,  effect  of,  278. 
Acts  of  state,  proof  of,  279. 

by  the  Gazette,  ib. 
foreign  and  colonial  acts  of  state,  proof  of,  281. 
commercial  regulations,  ib. 

public  docuraenis  printed  by  the  Queen's  printers,  evidence  by,  ib. 
articles  of  war,  ib. 
royal  proclamations,  ib. 
rules,  &c.,  of  poor  law  commissioners,  ib. 

journals  of  House  of  Lords  and  Commons,  admissibility  of,  ib. 
public  Acts  of  the  Crown,  283. 
ancient  surveys  under  authority,  284-288. 
inquisitions,  288. 
terriers  and  surveys,  289. 
proof  as  to  place  of  deposit,  291. 
public  licenses  and  grants,  293. 
certificates,  294. 
public  registers  of  parish,  296. 

how  proved,  302. 
parish  books,  admissibility  of,  303. 
books  and  documents  of  public  offices,  305. 
excise  and  custom  books,  &c.,  306. 
court  rolls,  308. 
official  documents,  308,  309. 
poll  books,  308. 
prison  books,  ib. 
bishop's  register,  309. 
corporation  books,  ib. 

chancellor's  books,  310.  , 

clerk  of  the  peace's  books,  ib. 
ship's  registers,  ib. 

stage  and  hackney  coach  entries,  311. 
herald's  books,  ib. 
armorial  bearings,  312. 
duchy  books,  ib. 
commissioner's  books,  313. 
land  tax  books,  ib. 
public  histories  and  chronicles,  314. 
II.  Judicial  Documents. 

First  class  : — ^judgments,  decrees,  and  verdicts,  admissibility  and  effect  of,  316. 

general  considerations,  317. 

when  conclusive,  318. 

judgments  in  rem,  320. 

judgment  always  evidence  as  a  fact  and  as  to  all  legal  consequences,  ib. 

admissibility  of,  with  view  to  proof  of  matters  on  which  founded,  323. 

judgments  between  private  persons,  when  admissible,  ib. 

against  same  jjartics,  324. 

tliosc  claiming  in  privity,  326. 

those  who  niigiit  have  been  parties,  330. 
benefit  to  be  derived  from,  must  be  mutual,  331. 
admissibility  of  verdicts  in  civil  ])roceedings  in  criminal  cases,  332. 
identity  of  facts,  333. 
verdict  for  same  cause  of  action  l)etween  same  parties  conclusive,  ib. 


INDEX.  911 

INSTRUMENTS  OF  EYWE^iCE.— Continued. 
the  adjudication  must  be  direct,  337. 

also  final  and  conclusive,  340. 
application  of  a  judgment  in  proof,  341. 
to  prove  same  fact  for  same  purpose,  341,  345,  346. 

if  relied  on  as  an  estoppel,  must  be  pleaded  as  such,  342. 

when  conclusive,  345. 
foreign  judgments,  when  conclusive  between  parties,  346-355. 

how  far  examinable,  355. 
judgments  of  inferior  courts,  358. 

how  far  examinable,  35!). 
to  prove  same  fact  for  a  different  purpose,  360. 
verdicts  and  judgments  in  criminal  cases,  admissibility  of,  in  civil  action,  361. 

as  a  general  rule  are  not  admissible,  363. 
eifect  of,  in  evidence,  365. 

penal  judgments  conclusive  as  to  all  legal  consequences,  367. 
judgments  and  convictions  in  inferior  courts,  368. 
orders  and  convictions  by  justices,  368,  383. 
sentences  by  colleges  and  visitors,  370. 
judgments  in  rem,  admissibility  of,  371. 
general  principles  respecting,  372. 
judgment  of  the  Ordinary  and  Spiritual  Courts,  373. 
sentences  of  Spiritual  Court,  375,  393. 
condemnations  in  the  Exchequer,  378. 
admiralty  decisions,  380. 
proceedings  by  quo  ivarvanto,  384. 
judgments,  &c.,  avoided  by  fraud,  ib. 

except  as  between  parties,  385. 
effect  of  judgments,  &c.,  in  proof  of  custom,  &c.,  386. 
mode  of  proof  of  judgments  and  verdicts,  388. 

of  a  decree  in  chancery,  391. 

of  sentence  in  Spiritual  Courts,  393. 

of  probate,  ib. 

of  letters  of  administration,  ib. 

of  judgments  of  inferior  courts,  396. 

of  convictions  by  justices,  397. 

of  an  award,  399. 

of  a  foreign  judgment,  ib. 
judgments,  &c.,  how  rebutted,  400. 

Judicial  Documents. 

Second  class: — inquisitions,  depositions,  and  examinations  taken  in  course  of 
judicial  proceedings,  404. 

when  admissible,  ib. 

inquisitions,  ib. 

depositions,  409. 
witness  must  be  dead  or  absent,  ib. 
parties  must  be  the  same,  412. 

also  subject-matter,  414. 
privity  of  claim,  415. 

must  have  been  taken  in  legal  proceedings,  ib. 
extra-judicial,  not  admissible,  416. 
in  Spiritual  Courts,  417. 

party  against  whom  offered  must  have  had  power  to  cross-examine,  418. 
when  evidence  to  prove  reputation,  421. 
witnesses  abroad  or  sick,  examinations  of,  423. 
bill  to  perpetuate  testimony,  427. 
preparatory  facts  to  be  proved,  429. 
existence  of  lawful  cause,  430. 
identity  of  deponent,  431. 
proof  of  depositions,  &c.,  by  copy,  432. 
leading  interrogatories,  433. 
lost  interrogatories,  434. 
depositions  in  Ecclesiastical  Courts,  ih. 


912  INDEX. 

INSTRUMENTS  OF  EYWE'i^CE.— Continued. 
Judicial  Documents. 

Third  class: — writs,  warrants,  pleadings,  &c.,  435. 

for  what  purposes  admissible,  ib. 
effects  of  writs  and  warrants  in  evidence,  ib. 

sheriff's  return  on,  437. 

proof  of,  438. 
bill  in  Chancery,  when  evidence,  439. 
answer  in  Chancery,  440. 

the  whole  of  an  answer  is  evidence,  444. 
proof  of  bill  and  answer,  447. 
affidavits,  448. 

rules  and  orders  of  Court,  449. 
pleadings,  ib. 
protestations,  451. 

III.  Mixed  Documents. 

are  partly  of  a  public  and  partly  of  a  private  nature,  452. 
court  rolls,  308,  452. 
corporation  books,  309,  455. 

proof  of,  457. 

inspection  of,  458. 
books  of  public  companies,  452,  456. 

IV.  Private  Documents. 
operation  in  evidence  of,  458. 

all  documents  to  which  a  party  was  privy  are  in  general  evidence  against  him 

459. 
express  admissions  by  party  as  to  contents  of,  ib. 
what  an  estoppel,  460. 

when  to  be  pleaded  as  such,  461. 

binds  all  privies,  462. 
sense  of  contracts  not  to  be  altered  by  parol  evidence,  463,  656. 
entries  and  declarations  by  third  persons,  463. 

when  admissible,  464. 

accompanying  acts,  466-471. 
title  deeds,  472. 
surveys  and  maps,  ib. 
ancient  deeds,  maps,  &c.,  473. 
entries  and  declarations  made  against  interest  of  party,  474-479. 

by  receivers,  stewards,  &c.,  479-485. 

by  deceased  tenants,  487-492. 
entries  in  the  usual  course  of  professional  business,  492-498. 
proof  of  private  documents,  498. 

production  of,  499. 

erasures  or  alterations  in,  501. 
proof  of  legal  requisites,  503. 

by  attesting  witness,  504. 

of  sealing  of  deed,  508. 

of  delivery,  509. 
proof  of,  on  denial  by  attesting  witness,  510. 
excuse  for  absence  of  attesting  witness,  512-518. 
secondary  proof  in  absence  of  attesting  witness,  519-521. 
proof  of  instrument  when  thirty  years  old,  521. 
proof  as  to  custody  of  ancient  documents,  524-529. 
proof  where  there  is  no  attesting  witness,  529. 
proof  of  lost  instrument,  530. 
evidence  of  search,  532-540. 

of  execution  of  lost  instrument,  541. 
proof  l>y  secondary  evidence,  542-550. 
proof  of  instrument  in  possession  of  adversary,  550. 

or  person  in  privity  with  him,  ib. 

wliat  equivalent  to  jiossession  by  adversary,  554. 
notice  to  jiroduce  instrument,  ib. 

on  whom  or  wiieii  to  be  served,  555,  7i. 


INDEX.  913 

INSTRUMENTS  OF  EYIDKNCE.— Continued. 
service  of,  how  proved,  555  and  App. 
notice  to  produce,  what  sufficient,  559. 

when  unnecessary,  561. 
if  produced  by  adversary,  must  be  proved,  565. 

unless  adversary  claims  interest  under  it,  567. 
if  not  produced,  possession  by  adversary,  how  proved,  568. 

then  secondary  evidence  may  be  given,  568. 
admission  by  order  under  R.  G.  4  Will.  IV.,  571. 

under  15  and  16  Vict.  c.  76.     See  App. 
proof  by  enrolment,  573. 
proof  by  recital,  577. 

intrinsic  objection  will  not  preclude  the  reading,  578. 
the  whole  of  an  entire  document  to  be  read,  579. 

jury  to  judge  of  credit  due  to  whole  or  part,  583.      See  tit.  Parol  Evidence — 
Witnesses — Written  Instruments,  ^c. 
INTEGRITY, 

of  witnesses,  observations  on,  820. 

INTENTION, 

presumptions  as  to,  71-75. 
from  conduct,  849. 
INTEREST, 

general  principle  of  exclusion  on  account  of,  23. 
nature  of  disqualifying  interest  formerly,  24,  118. 
objections  to  the  rule,  25. 
former  exceptions  to  it,  26-28. 
operation  of  the  excluding  principle,  29. 
in  the  result  of  the  verdict  or  judgment,  119. 
as  a  party,  ib. 

or  beneficially  interested,  ib. 
or  from  being  bound  to  abide  the  result,  ib. 
right  to  share  in  result  or  liability  to  contribute,  120. 
liability  over,   121. 
agent,  ib. 
interest  in  record,  122. 

effect  of  3  and  4  Will.  IV.  c.  42,  upon,  124. 
Stat.  6  and  7  Vict.  c.  85,  provisions  of,  125. 
effect  of,  ib. 

general    rule    that    interested    person    incompetent,    abrogated    by   this 
statute,  126. 
exceptions  of  certain  persons  excluded  on  ground  of  interest,  and  not  rendered 
competent,   127. 

party  individually  named  in  record,  ib. 

co-defendant  who  had  suffered  judgment  by  default,  128. 
defendant  in  indictment  who  had  pleaded  guilty,  ib. 
party  who  had  ceased  to  be  interested,  129. 
against  whom  7iolle  prosequi  had  been  entered,  ib. 
lessor  or  tenant  in  ejectment,  132. 

landlord  or  person  in  whose  right  cognizance  is  made,  133. 
person  in  whose  individual  behalf  action  brought  or  defended,  134. 
husband  or  wife  of  these  persons,  138. 

in  what  cases  these  persons  admissible  formerly,  127,  134,  138. 
stat.  14  and  15  Vict.  c.  99,  provisions  of,  140. 
effect  of  them,  140,  141,  142. 

repeals  exception  in  6  and  7  Vict.  c.  85,  save  as  to  husbands  and  wives,  140. 
no  person  charged  with  an  indictable  offence,  or  one  punishable  on  sum- 
mary  conviction,   competent  or  compellable   to  give   evidence  for  or 
against  himself,  ib. 
any  proceeding  in  consequence  of  adultery  or  any  action  for  breach   of 

promise  of  marriage  excepted,  141. 
husbands  and  wives  not  admissible  for  or  against  each  other  in  criminal 

cases,  140. 
nor  in  civil  cases,  if  interested,  142. 


914  INDEX. 

INTEREST— Contmtied. 

unless  both  be  parties  to  the  proceeding,  ib. 
whether  husband  or  wife  may  be  examined  if  adversary  do  not  object,  143. 
if  objection  made,  it  is  in  judge's  discretion  whether  he  will  allow  it  to 

be  withdrawn,  ib. 
on  what  objection  founded,  142. 
INTERPRETER, 

not   allowed   to  divulge   professional  communication   between   attorney  and 
client,  40. 
INTERROGATORIES, 

witness  abroad  may  be  examined  on,  110. 

mode  of  procedure,  424,  426. 
where  lost,  434.     See  Depositions. 
INTRINSIC  OBJECTION, 

does  not  prevent  reading  of  deed,  578. 
INTRODUCTORY  MATTERS, 

evidence  admissible  as  to,  645. 
INVESTIGATION, 

process  of,  what  essential  to,  2,  3. 
IRELAND, 

law  in,  when  judicially  noticed,  737. 

documents  admissible  in,  without  proof  admissible  in  England,  App. 
IRRELEVANT  FACTS, 

not  evidence,  617. 
ISSUE, 

what  matters  in,  admitted  by  pleadings,  450,  639. 
where  several  issues,  order  of  proof,  605,  616. 
what  sufficient  proof  of,  632. 
JACTITATION  SUIT, 

on  what  founded,  377. 
effect  of  judgment  in,  ib. 
JEWS, 

how  sworn,  30. 

marriage  of,  how  proved,  297,  n. 

entry  by  chief  rabbi  of,  of  circumcision  of  child,  not  evidence  as  to  age,  300,  498. 
JOURNALS, 

of  Houses  of  Parliament,  281. 

copies  of,  admissible  in  evidence,  282. 
JUDGMENT, 

principle  of  admissibility  of,  36,  316. 

for  what  purposes  offered  in  evidence,  316. 

evidence  by,  is  in  its  nature  presumptive  only,  318. 

admissible  to  prove  judgment,  &c.,  as  a  mere  fact,  317,  320. 

and  with  a  view  to  all  legal  consequences,  320. 
admissibility  of,  in  proof  of  facts  recited,  318. 
as  to  facts  of  a  private  nature,  319,  323. 
as  to  facts  between  the  same  parties,  323. 
or  those  who  claim  in  privity,  326,  327. 
heir  and  ancestor,  ib. 
executor  and  testator,  ib. 
verdict  for  one  in  remainder  against  another,  327. 

of  ouster  against  a  mayor  evidence  in  quo  wan-anto  ugainst  one  admitted,  by  him,  ib. 
sufficient  if  the  i)arties  be  substantially  the  same,  329. 
ill  ejectment  the  law  notices  the  real  parties,  326,  329. 
evidence  against  one  who  might  have  been  a  party,  330. 
cannot  be  used  unless  the  benefit  to  be  derived  be  mutual,  331. 
in  civil  proceedings  not  evidence  in  criminal,  332. 
recovery  of,  when  a  bar,  333-335. 
identity  of  fact  to  be  proved,  333. 

not  essential  that  it  should  have  been  specially  i)ut  in  issue,  336. 
party  sued  in  dill'ereiit  capacity  not  concluded  by,  337. 
nature  and  manner  of  the  adjudication,  ib. 


INDEX.  915 

JUDGMENT.— Co«<t«Me<?. 

must  be  direct,  not  oollateral,  ib. 

but  collateral  adjudication  is  evidence  between  the  same  parties   if  issue 
be  joined  upon  it,  330. 
must  be  conclusive,  340. 

effect  of,  on  same  fact  for  same  purpose,  341,  365. 

conclusive  as  between  the  same  parties,  323,  342. 

provided  it  be  pleaded  as  an  estoppel,  342. 

if  not  so  pleaded,  jury  may  find  according  to  truth,  343. 

to  what,  the  rule  extends,  345. 
foreign,  when  conclusive,  346-354. 

impeachable  for  apparent  error,  354. 

how  far  examinable,  355. 
of  inferior  courts,  358,  368. 
effect  of,  to  prove  same  fact  for  different  purpose,  360. 

by  a  court  of  exclusive  jurisdiction,  ib. 

b}'  a  court  of  not  exclusive  jurisdiction,  ib. 
in  criminal  cases,  361-368. 

in  general  not  admissible  to  establish  a  particular  fact,  ib. 
acquittal  of  defendant  on  an  indictment  not  evidence  in  a  civil  proceeding,  ib. 

otherwise  when  a  defendant  pleads  that  he  is  guilty,  362. 
whether  conviction  on  indictment  for  bigamy  be  admissible  in  civil  action,  ib. 
verdict  in  a  criminal,  not  evidence  in  a  civil  case,  363. 
acquittal  or  conviction  in  a  criminal  proceeding,  365. 

when  pleaded  in  bar  of  a  second  prosecution,  366. 
acquittal  on  indictment  for  non-repair  of  road  inconclusive,  ib. 

but  a  conviction  would  be  conclusive,  unless  fraud  were  proved,  367. 
penal,  conclusive  as  to  all  legal  consequences,  ib. 

exception  in  a  case  of  principal  and  accessory,  ib. 
of  inferior  court  evidence  of  fact  of  adjudication,  368. 

and  as  to  all  legal  consequences,  ib. 
convictions  by  magistrates,  ib. 

sentences  by  visitors,  370. 
judgment  in  rem,  36,  420,  371-388. 

marriage,  371. 

bastardy,  ib. 

when  final,  372. 

reasons  for  this,  ib. 
of  the  Spiritual  Courts,  373. 

probate,  374. 

sentence  of  nullity  of  marriage,  375. 

of  deprivation,  ib. 

in  jactitation  suit,  375,  376. 
not  conclusive,  376. 
nor  evidence  but  inter  partes,  ib. 
of  condemnation  in  the  Exchequer,  378. 
by  commissioners  of  excise,  348,  379. 
by  commissioners  of  taxes,  ib. 
of  Courts  of  Admiralty,  380. 
of  foreign  courts,  ib. 

orders  of  justices  in  settlement  cases,  383. 
judgment  in  quo  umrranto,  384. 
judgment  in  rem,  when  conclusive,  ib. 
against  one  not  a  party,  ib. 
impeachable  for  fraud,  ib. 
against  parties,  385. 
when  not  impeachable,  ib. 
effect  of,  in  proof  of  custom,  386. 

right  of  way,  ib. 

prescription,  ib. 

pedigree,  ib. 
when  conclusive,  387. 
judgment,  how  proved,  388. 

by  production  of  record  from  proper  depository,  ib. 


916  INDEX. 

JUDGMENT— Coniiniied. 

by  exemplification,  ib. 

by  sworn  or  admitted  copy,  ib. 
when  a  judgment  becomes  a  record,  ib. 
of  House  of  Lords  how  proved,  389. 
verdict,  how  proved,  ib. 
decree  in  Chancery,  how  proved,  391. 
in  Spiritual  Court,  how  proved,  393. 

probate,  ib. 

letters  of  administration,  ib. 
by  ledger  books  of  Spiritual  Court,  ib. 

Avhen  evidence,  ib. 

revocation  of  probate,  396. 
of  inferior  court,  how  proved,  ib. 
of  county  court,  how  proved,  397. 
of  court  baron,  ib. 
of  hundred  court,  ib. 
convictions  by  justices,  how  proved,  ib. 
award,  how  proved,  398. 
foreign  judgment,  how  proved,  399. 
judgment,  how  rebutted,  400. 

by  proof  that  it  is  null  arid  void,  ib. 

that  it  was  fraudulent,  402. 

that  it  was  reversed,  403. 

JUDICIAL  DOCUMENTS, 
how  far  evidence,  97. 
when  conclusive,  318. 
kinds  of,  316. 

1.  judgments,  decrees,  and  verdicts,  316-403. 

2.  inquisitions,  depositions,  and  examinations,  404-435. 

3.  writs,  warrants,  pleadings,  &c.,  435-451.     See  tit.  Depositions — Inquisitions 
— Instruments  oj  Evidence — Judgments — Writs,  ^c. 

JUDICIAL  NOTICE, 

of  what  matter  courts  will  take,  735-739. 

facts  according  to  the  course  of  nature,  735. 

general  customs  of  the  realm,  ib. 

contents  and  titles  of  public  Acts  of  Parliament,  ib. 

and  of  such  as  relate  to  trade  in  general,  ib. 

all  other  general  laws,  ib.  • 

privileges  of  the  royal  palaces,  ib. 

Ecclesiastical  and  Admiralty  laws,  ib. 

commencement  of  sessions  of  Parliament,  ib. 

place  of  holding  Parliament,  736. 

prorogation  of  Parliament,  ib. 

course  of  proceedings  in  Parliament,  ib. 

all  courts  of  general  jurisdiction  and  their  proceedings,  ib. 

the  Laws  of  Ireland,  737. 

Court  of  Chancery,  ib. 

other  courts  at  Westminster,  ib. 

County  Palatine  Courts,  ib. 

courts  in  Wales,  ib. 

Prerogative  Courts,  ib. 

what  courts  have  general  jurisdiction,  ib. 

limits  of  their  jurisdiction,  ib. 

record  of  its  own  court,  ib. 

number  of  days  in  a  month,  738. 

computation  of  time  by  the  calendar,  ib. 

fasts  and  festivals  in,  ib. 

period  of  terms,  ib. 
known  divisions  of  the  kingdom,  ib. 
royal  proclamation,  738. 
accession  and  demise  of  the  sovereign,  739. 


INDEX.  917 

JUDICIAL  NOTICE.— Cow/mwerf. 
seals  of  the  superior  Courts,  ib. 

of  the  Ecclesiastical  and  Admiralty  Courts,  ib. 

of  the  Courts  of  Bankruptcy  and  Insolvency,  ib. 

of  the  County  Courts,  ib. 

of  the  Stannaries  Courts,  ib. 

of  the  Board  of  Poor  Law  Commissioners,  ib. 

of  the  Record  Office,  ib. 

of  the  Register  of  Designs'  Office,  ib. 

of  the  Apothecaries'  Company,  ib. 

of  the  City  of  London,  ib. 
seals  given  by  Act  of  Parliament,  ib. 
the  sign  manual,  740. 
the  signatures  of  the  judges,  ib. 
meanintjof  English  words,  ib. 
terms  of  art,  ib. 
legal  weights  and  measures,  ib. 
money,  ib. 

ordinary  admeasurement  of  time,  ib. 
but  the  courts  will  not  notice  judicially  peculiarities  of  tenures,  736. 

nor  particular  local  customs,  ib. 

nor  the  mere  practice  of  other  courts,  ib. 

nor  the  nature  and  extent  of  jurisdiction  of  inferior  courts,  737. 

nor  any  particular  jurisdiction,  ib. 

nor  of  a  particular  liberty,  ib. 
,   nor  of  the  cinque  ports,  ib. 

nor  foreign  laws,  ib. 

nor  laws  of  Scotland,  ib. 

nor  laws  of  the  colonies,  ib. 

nor  the  seal  of  foreign  courts,  ib. 

nor  the  hours,  as  the  time  of  sunset,  738. 

nor  the  local  situation  of  places  in  counties,  ib. 

nor  the  distance  of  counties  from  each  other,  ib. 

nor  that  a  place  is  in  a  particular  county,  ib. 

nor  that  a  town  is  in  a  particular  diocese,  ib. 

nor  that  Dublin,  mentioned  in  a  bill  of  exchange,  is  in  Ireland,  ib. 

nor  the  seals  of  inferior  courts,  unless  required  by  statute,  740. 

nor  the  seal  of  the  sheriff,  ib. 

nor  the  seals  of  other  corporations  than  London,  ib. 

nor  the  stamp  of  a  judge's  order,  ib. 

JURATA  PATRLE, 

of  Glanville  and  Bracton,  7,  n. 

JURY, 

origin  of  trials  by,  5-8. 

advantages  derived  from  institution  of,  6,  10,  813. 

formerly  returnable  from  the  vicinage,  6,  69. 

and  acted  in  double  capacity  of  witnesses  and  jurors,  7. 
duties  of,  7,  10,  811. 
must  judge  of  facts  by  means  of  their  own  experience,  9,  10. 

but  rely  for  facts  upon  the  information  of  others,  16,  816. 
on  what  grounds  of  relief  they  must  depend,  17. 
how  to  decide  on  questions  of  skill,  96. 

to  judge  of  credit  due  to  whole  or  any  part  of  the  evidence,  583. 
fitness  of,  for  investigating  facts,  8. 
duty  of,  in  finding  a  general  verdict,  11,  767,  817. 
at  liberty  to  find  a  special  verdict,  765. 
must  find  facts,  not  evidence,  ib. 
are  the  legal  judges  as  to  probabilities,  8  2. 
how  far  limited  by  rules  of  law,  814. 
bound  by  all  legal  presumptions,  816. 
must  decide  on  evidence,  not  on  private  knowledge,  ib. 
not  bound  by  estoppels,  816. 
mistake  of,  ground  for  new  trial,  802. 


918  INDEX. 

JURY. —  Continued. 

charging,  practice  as  to,  810. 
JUSTICE  OF  THE  PEACE, 

depositions  before,  when  evidence,  38,  410,  416. 

convictions  by,  effect  of,  368,  397. 
KING, 

proclamation  of,  what  it  proves,  279. 

sign  manual  of,  effect  of,  293,  294. 
judicially  noticed,  740. 
LATENT  AMBIGUITY, 

may  be  removed  by  extrinsic  evidence,  652.     See  tit.  Evidence. 
LAW, 

presumptions  of,  741,  747. 

questions  of,  to  be  decided  by  the  court,  764. 

foreign,  how  proved,  175. 

LAW  AND  FACT, 

comprised  in  every  issue,  3. 
distinctions  between,  767. 

in  questions  of  general  technical  inferences,  770. 
of  reasonable  time,  probable  cause,  &c.,  768-781. 
when  the  conclusion  in  law  depends  on  the  conclusion  in  fact,  772. 
grounds  of  decision  in  absence  of  legal  rules,  775. 
mixed  questions  of,  in  cases  of  fraud,  784. 
malice,  785. 
negligence,  ib. 
reputed  ownership,  786. 
written  instruments,  ib. 
LAWS, 

provisions  of,  1 

are  either  preventive  or  remedial,  2. 
LEADING  QUESTIONS, 
rule  as  to,  166. 

in  general  are  not  allowed,  ib. 
when  allowed,  167-172. 

where  witnesses  evidently  wishes  to  conceal  the  truth,  ib. 
or  is  of  necessity  adverse,  ib. 
or  called  to  contradict  former  witness,  ib. 
may  be  put  on  cross-examination,  197.     See  tit.  Witness. 

LEGAL  EFFECT, 

proof  according  to,  where  sufficient,  632. 
LEGAL  PRESUMPTIONS, 

nature  and  effect  of,  741,  747,  775. 
LETTERS, 

when  admissible,  95,  485,  581. 

date  of,  prima  facie  evidence  of  the  time  when  written,  758. 
except  of  wife  in  case  of  crim.  con.,  759. 

secondary  evidence  of,  547. 

evidence  against  parties,without  producing  those  to  which  they  are  answers, 581. 

receipt  of,  evidence  of,  76,  552. 

meaning  of,  to  be  ascertained  l)y  jury  when,  730. 
LETTERS  PATENT, 

secondary  evidence  of,  545. 
LICENSE, 

ancient,  to  fish  admissible,  94. 

under  the  sign  manual,  293. 

in  general,  not  evidence  of  matter  of  fact,  294. 

of  the  PojJC,  effect  of,  ib. 

whetlier  copy  admissible,  ib. 

from  the  Crown,  secondary  evidence  of,  548. 

from  governor  of  a  colony,  ib. 

to  trade  with  enemy,  537. 


INDEX.  919 

LIFE, 

presumption  of,  7G. 
LOG-BOOK, 

of  man-of-war,  admissibility  of,  305. 

LONDON, 

books  of  city  of,  proof  of,  269. 

seal  of  corporation  of,  judicially  noticed,  740. 

customs  of,  must  be  certified  to  the  courts,  736. 
LORDS,  HOUSE  OF, 

journals  of,  of  what  evidence,  281. 

judgment  of,  how  proved,  282,  389. 

journals  of,  copy  of,  printed  by  printer  to  Queen  or  House,  sufficient,  382. 

LOST  INSTRUMENT, 
proof  of  loss,  530. 

search  for,  531,  540. 
execution  of,  541. 
secondary  evidence  of,  542.     See  Instniments  of  Evidence. 
LUNACY, 

inquisitions  of,  admissibility  of,  379. 

proof  of  temporary,  renders  deposition  admissible,  410. 

LUNATIC, 

competency  of,  as  a  witness,  114,  410,  512,  n. 

depositions  of  temporary,  admissible,  410,  n. 
MAGNITUDE, 

variance  from  allegation  of,  effect  of,  626,  630. 
MALICE, 

when  a  question  of  law,  785. 
when  fact  of,  ib. 

collateral  facts  admissible  to  prove,  621. 
MANNER, 

of  giving  testimony,  observations  on,  822.     See  tit.  Witness. 

MAN-OF-WAR, 

log-book  of,  admissibility  of,  305. 

MANOR, 

custom  of,  proof  of,  by  reputation,  47. 
boundary  of,  how  proved,  49,  63. 
whether  of  ancient  demesne,  how  proved,  284. 
proof  of,  by  ancient  surveys,  287. 
MAP, 

ancient,  when  evidence,  284-288. 

of  private  estate,  when  admissible,  472.     See  tit.  Surveys, 
MARRIAGE, 

proof  of,  297. 

statutes  relating  to  registration,  of, 
26  Geo.  II.  c.  33,  ib. 
52  Geo.  III.  c.  146,  ib. 
4  Geo.  IV.  c.  76,  297. 
6  &  7  Win.  IV.  c.  86,  ib. 
3  &  4  Vict.  c.  92,  300. 
sentence  of  Ecclesiastical  Court  as  to,  effect  of,  371. 
nullity  of,  sentence  of,  when  conclusive,  375. 
jactitation  of,  sentence  in  suit  for,  not  conclusive,  ib. 

nor  evidence,  except  inter  partes,  ib. 
divorce,  sentence  of,  when  admissible,  393. 
alimony,  decree  for,  when  admissible,  ib. 
MARTIAL,  COURT, 

sentence  of,  effect  of,  371,  n. 

attendance  of  witnesses  at,  109.     See  Court  Martial. 

MEASURE  OF  EVIDENCE, 

interference  by  law,  as  to,  733. 


920  INDEX. 

MEDIATE  EVIDENCE, 
kinds  of,  43,  53. 

confession  by  party,  50. 

declaration  accompanying  act,  51. 

principle  of  admission,  51,  55,  61. 
mediate  secondary  evidence,  53. 

generally  excluded,  and  why,  55,  61. 

in  what  cases  admissible,  61.     See  Evidence — Instruments  of  Evidence. 
MEMORANDUM, 

may  be  referred  to,  to  refresh  memory,  177. 

and  used,  although  witness  has  no  recollection  of  the  facts,  178. 
need  not  be  contemporary  with  the  fact,  179. 

nor  written  by  the  witness  himself,  180. 
must  be  the  best  evidence  the  case  admits  of,  182. 
mere  copy  of  a  writing  not  admissible,  ib. 

nor  of  a  memorandum,  except  original  lost,  183. 
opposite  counsel  may  inspect  and  cross-examine  upon,  184. 
where  witness  has  no  recollection  independently  of  the  writing,  it  must  be  pro- 
duced, ib. 
MEMORY  OF  WITNESS, 
may  be  refreshed,  177. 

how,  177-184.     See  tit.  Memorandum. 

MERCANTILE  CONTRACT, 

parol  evidence  to  explain  written,  admissibility  of,  701-710.    See  tit.  Parol  Evi- 
dence. 
MERE  LAW, 

presumption  of,  747. 
MIDWIFE, 

entry  by,  admissibility  of,  65,  475.     See  tit.  Hearsay. 

MINISTER, 

not  privileged  to  withhold  confidential  communication,  40. 

MIRACLE, 

Mr.  Hume's  doctrine  on  the  subject  considered,  833,  n. 

MISDIRECTION, 

effect  of,  and  of  waiver  of,  801. 

MISTAKE, 

instrument,  may  be  explained  by  parol  evidence,  when,  675. 

MODUS, 

evidence  of,  49.     See  tit.  Tithes. 
MORAVIAN, 

affirmation  of,  allowed,  32,  n. 
MUNICIPAL  LAW, 

objects  of,  1. 

provisions  of,  2. 
MUTINY  ACT, 

examination  under,  295,  ?j 
MUTUALITY, 

when  essential  to  admissibility  of  evidence,  321.     See  tit.  Evidence. 
NAVY  OFFICE, 

register  of,  when  evidence,  305. 
NEGATIVE  EVIDENCE, 

proof  of,  on  whom  incumbent,  588-590. 
NEGLIGENCE, 

a  question  of  fact,  785. 
NEW  TRIAL, 

grounds  for,  1 1,  799, 

misdirection  of  judge,  799. 
rejection  of  evidence,  800. 
admi.ssion  of  improper  evidence,  ib. 


INDEX.  921 

NEW  T'RlAJj.—Condmied. 

mistake  of  jury,  802. 
excessive  damages,  804. 

after  acquittal,  805. 
NONSUIT, 

practice  as  to,  806-810. 
NOTICE,  JUDICIAL, 

of  what  matters,  taken,  73.5-739.     See  tit.  Judicial  Notice. 
NOTICE  TO  PRODUCE, 

when  necessary,  554. 

time  of  giving,  555. 

mode  of  giving,  557,  559. 

from  of,  559. 

service  of,  may  be  proved  by  affidavit,  App. 

insufficient,  effect  of,  113. 

when  unnecessary,  561-564.     See  tit.  Instruments  of  Evidence. 
NUMBER, 

variance  from  allegation  of,  effect  of,  627. 

of  witnesses,  observations  as  to,  827. 

effect  of,  in  measuring  force  of  testimony,  828. 

OATH, 

obligation  of,  one  great  test  of  truth,  22,  29. 

who  may  take,  29. 

in  what  it  consists,  29. 

form  of,  30. 

by  Jew,  ib. 
by  Turk,  ib. 

by  Scotch  Covenanter,  31. 
by  Gentoo,  ib.,  n. 
must  be  that  which  the  witness  holds  to  be  most  binding,  30,  31,  n. 
rank  or  age  does  not  exempt  from  taking,  33. 
must  be  judicial,  31.    ' 

and  administered  in  open  court,  ib. 
persons  exempted  from  taking,  29,  32. 
OBJECTION, 

to  admissibility  of  witness,  when  and  how  to  be  taken,  113.     See  tit.  Witness. 
OFFICE  COPY, 

when  admissible  in  evidence,  260-265. 
of  depositions,  295.     See  tit.  Copy — Instruments  of  Evidence. 
OFFICER,  PUBLIC, 

entrj'  by  deputy  of,  when  admissible,  457. 
OFFICIAL  COMMUNICATIONS, 

when  excluded  on  grounds  of  state  policy,  41,  191. 
when  admissible,  42. 
OMISSION, 

to  produce  evidence,  presumption  from,  75. 
to  plead  matter,  effect  of,  342,  n. 
to  traverse  allegations  in  pleadings,  effect  of,  451. 
OMNIA  RITE  ESSE  ACTA, 
a  legal  presumption,  757. 
ONUS  PROBANDI, 

general  rule  as  to,  585. 

lies  on  the  party  who  alleges  the  affirmative,  ib. 

or  who  has  peculiar  means  of  knowledge,  589,  590. 
but  not  where  the  negative  involves  a  criminal  omission,  593. 
when  the  law  presumes  the  affirmative,  ib. 
on  issue  in  plea  in  abatement,  599. 

on  appeals  in  orders  of  removal,  bastardy,  and  poor's  rate,  595.  See  tit.  Evidence. 
OPINIONS, 

on  questions  of  skill  and  judgment,  admissibility  of,  96. 
when  inadmissible,  176.     See  tit.  Evidence. 
53 


922  INDEX. 

ORAL  EVIDENCE, 

priority  of,  consideration  of,  102. 

of  written  contract,  vvlien  excluded,  731. 

to  vary,  &c.,  written  contract,  when  admissible,  648.     See  tit.  Parol  Evidence. 

ORDEAL, 

abolition  of  trial  by,  effect  on  trial  by  jury,  7. 

origin  of,  13. 
ORDER, 

of  judge,  proof  of,  449. 

of  justices  of  assize,  proof  of,  ib. 
ORDER  OF  PROOF— See  Onus  Prohandi. 

right  to  begin,  595-602. 

in  case  of  several  issues,  605,  616. 
ORDINARY, 

certificate  by,  effect  of,  373. 
OVERSEER, 

books  of  rates  to  be  kept  by,  304. 

register  of  parish  apprentices,  to  be  kept  by,  ib. 

entries  by,  admissibility  of,  480. 
OWNERSHIP, 

acts  of,  effect  of,  470. 

PARISH, 

register,  when  evidence,  296. 

proof  of,  302. 
books  of,  when  evidence,  303. 

boundary  of,  evidence  of,  50,  283.     See  tit.  Boundary. 
PARLIAMENT, 

rolls  of,  admissibility  of,  97. 

member  of,  not  examinable  as  to  what  has  passed  in,  193. 

public  acts  of,  proof  of,  273. 

private,  276. 
recitals  in  acts  of,  278. 
journals  of,  evidence  of,  281. 
book  of,  entries  in,  295. 
prorogation  of,  judicial  notice  of,  736. 

PAROL  EVIDENCE, 

independent  force  and  effect  of,   716. 

general  rule  respecting,  728. 

when  admissible  in  conjunction  with  written,  728,  730. 

with  reference  to  written,  648. 
not  admissible  to  supersede  written  instrument,  649. 

to  supply  a  defect,  &c.,  ih. 

nor  to  remove  apparent  ambiguity,  653. 

nor  to  contradict  or  vary  written  instrument,  648,  655. 

nor  to  extend  or  limit  terms  of  written  agreement,  657. 

nor  to  alter  legal  operation  of  agreement,  666. 

nor  to  alter  terms  of  will,  668. 

nor  to  explain  intention  of  testator,  ih. 

nor  to  vary  legal  construction  of  will,  ih. 
but  admissible  to  disprove  instrument  in  case  of  fraud,  671,  672. 

by  showing  its  illegality,  674. 

to  j)rove  mistake,  675. 

to  discharge  a  written  instrument,  678. 

in  aid  of  written  evidence,  ih. 

to  establish  it  or  apply  its  terms,  679. 

to  remove  latent  ambiguity,  652,  679. 

to  show  whether  [)arcel  or  not,  694. 

to  explain  ancient  ciiarters,  695-700. 

hut  not  when  the  language  is  plain,  698. 

to  explain  mercantile  contracts,  701-710. 

to  annex  customary  incidents,  710. 

to  rebut  a  presumption,  712. 


INDEX.  923 

PAROL  EYWENCE— Continued. 

whether  admissible  to  explain  private  deeds,  700. 

to  show  the  state  and  circumstances  of  a  testator,  *i\5. 

to  determine  the  meaning  of  his  words,  716. 
when  written  evidence  has  operation  e.xclusive  of,  717. 

matters  of  record,  ib. 
when  not,  718. 
collateral  memorials,  ih. 
when  inconclusive  inter  partes,  720-725. 

when  against  strangers,  725. 
when  conclusive,  72G.     See  tit.  Evidence — Hearsay. 

PARTIAL  PROOF, 

when  sufficient,  626. 

when  insufficient,  628. 
PARTIES, 

admissible  as  witnesses,  127,  139. 

admissions  bj',  50,  85,  459,  505. 

when  judgment  admissible  between,  319,  323. 

when  judgment  in  rem  conclusive  against,  385. 

identity  of,  proof  of,  324. 

claiming  in  privitj',  326. 

mutuality  of,  331. 

depositions  affecting,  412. 

what  facts  conclusive  between,  720.     See  tit.  Interest — Judgments. 

PARTNERSHIP, 

presumption  of  continuance  of,  76. 
notice  of  dissolution  of,  280. 
PARTY, 

to  suit  how  competent  and  compellable  to  give  evidence  (14  k  15  Vict.  c.  99), 

140,  App. 
husband  and  wife  of,  not  admissible  as  a  witness,  142. 

unless  also  a  party  to  the  suit,  ib. 
admissions  by,  effect  of,  50,  85,  459. 

good  evidence  of  contents  of  writing,  505. 
declarations  by,  against  his  interest,  64. 
entries  by,  64,  474. 
when  bound  by  judgment,  385. 
not  allowed  to  discredit  his  own  witness,  244. 

but  in  some  cases  to  contradict  him,  235,  244-251. 
PEDIGREE, 

admissibility  of  declarations  of  relations  in  proof  of,  45,  62,  63,  188. 
post  litem  motam,  190. 

of  reputation,  traditionary  evidence  respecting,  45,  190. 
mere  extract  from  records  of  Herald's  College  not  admissible,  312. 
proof  of,  by  special  verdict,  387. 
not  provable  by  bill  in  Chancery,  439. 
when  depositions  are  evidence  of,  ib.  n. 
PEER, 

cannot  give  evidence  without  being  sworn,  33. 
writ  of  summons  to,  proof  of.  282. 
PERAMBULATION.     See  Boundary/. 
when  evidence  of  boundary,  50. 

PHYSICIAN, 

not  allowed  to  withhold  confidential  communication  by  patient,  40. 

PLACE  OF  DEPOSIT, 

what  to  be  considered  a  proper,  for  ancient  document,  291,  524.     See  tit.  An- 
cient histruments — Deeds,  ^'c. 
PLEADINGS, 

necessity  for,  2. 

office  of,  3. 

admissibility  of,  449. 


924  INDEX. 

TLEXm'iiGS— Continued. 

allegations  in  one  count,  not  admissions  for  different  purposes,  450. 

admissions  in,  effect  of,  450,  639. 

what  admitted  by,  451,  641. 
POLICY  OF  INSURANCE, 

proof  of  loss  of,  537. 

POLICY,  PUBLIC, 

exclusion  of  evidence  on  grounds  of,  39,  112,  192. 
in  the  case  of  husband  and  wife,  39,  141,  142. 
proceedings  before  the  grand  jury,  193. 
confidential  communications,  40. 
official  communications,  42,  192. 
evidence  respecting  map  of  the  Tower,  ib. 
minutes  taken  before  the  privy  council,  42. 

POLL  BOOKS, 

admissibility  of,  in  evidence,  308. 
may  be  proved  by  sworn  copy,  269. 

POPE,  THE 

admissibility  of  bull  of,  294. 
license  of,  ib. 

PORTS, 

ancient  survey  of,  evidence  by,  285. 

POSITIVE  TESTIMONY, 

effect  of,  as  compared  with  negative,  867. 

comparison  of,  with  circumstances,  872.     See  tit.  Evidence. 

POST, 

sending  letter  by,  presumption  from,  75,  552. 

POSTEA 

when  evidence  without  the  judgment,  390,  n. 
production  of,  is  proof  of  trial,  430. 

POST  LITEM  MOTAM, 

objection  of,  to  hearsay  evidence,  190,  421, 
POWER  OF  ATTORNEY, 

proof  of  execution  of  deed  under,  510. 

PRACTICE, 

upon  trial  of  an  action,  585. 

order  of  proof,  595. 

arguments  of  counsel,  610. 
PREPONDERANCE, 

of  evidence,  when  sufficient,  818.     See  tit.  Evidence. 

PRESUMPTIONS, 

general  observations  on,  77. 

definition  of,  80. 

necessity  for  recourse  to,  46,  70. 

foundation  of,  as  to  motives,  ib. 

kinds  of,  742. 

legal,  need  not  be  proved,  741. 

artificial,  100,  742. 

immediate  and  mediate,  744, 

of  mere  law,  747. 

conclusive  and  inconclusive,  748. 

nature  of  artificial  and  conclusive,  ib. 

of  artificial  but  inclusive,  ib. 
of  law  and  fact,  101,  749. 
natural,  751. 

in  favor  of  innocence,  75,  753. 
omnia  rit^  esse  acta,  757. 
from  length  of  time,  74,  521. 
of  continuance,  76,  760. 
from  conduct,  71,  762. 


INDEX.  925 

TRESVM?Tl01<i— Continued. 

conirnon  experience,  ib. 

course  of  dealing,  75,  "763. 
as  to  intention,  70,  849. 
from  reputation,  46. 

that  a  man  will  consult  his  own  interests,  845. 
as  to  execution  of  instrument,  521,  570. 

arising  from  instrument  may  be  rebutted  by  parol  evidence,  when,  712. 
what,  noticed  by  the  courts,  735.     See  tit.  Judicial  Notice. 

PRESUMPTIVE  EVIDENCE, 
definition  of,  741. 
includes  all  evidence  which  is  not  positive  and  direct,  ib.     See  tit.  Evidence. 

PRIMA  FACIE  EVIDENCE, 

distinguished  from  conclusive,  819. 

plaintiff  must  adduce  some,  in  support  of  every  essential  allegation,  735. 
PRINCIPAL, 

guilt  of,  may  be  controverted  by  accessory,  367,  385. 

conviction  of,  not  conclusive  against  accessory,  726. 

PRINCIPLES  OF  EVIDENCE, 

general  division  of,  15.     See  tit.  Evidence. 
PRISON, 

books,  admissibility  of,  308. 
PRISONERS, 

witnesses  for,  formerly  not  sworn,  14,  106. 
but  are  now  to  be  sworn,  33. 

attendance  of,  as  witnesses,  how  procured,  104. 

witnesses  for,  attendance  of,  how  procured,  106. 
PRIVATE  WRITINGS, 

operation  in  evidence  of,  458,  498. 

construction  of,  700.     See  tit.  Instruments  of  Evidence. 

PRIVILEGED  COMMUNICATIONS, 

what  are,  and  rule  respecting,  40,  193. 
PRIVITY, 

of  the  party  to  be  affected  by  document,  when  necessary,  310,  324,  443. 
PROBABILITY, 

from  coincidence  of  independent  circumstances,  853.     See  tit.  Evidence. 
PROBABLE  CAUSE, 

evidence  as  to  existence  of,  781. 

question  of,  is  one  of  law,  782. 
PROBATE, 

provable  by  copy,  269, 395. 

when  conclusive  evidence,  339,  374. 

when  not  conclusive,  339. 

when  it  does  not  rebut  forgery,  ib. 

PROBATIO  INARTIFICIALIS, 

of  the  Roman  law,  611. 
PROCLAMATION, 

public,  what  evidence  of,  279. 
PRODUCE,  NOTICE  TO, 

on  whom  and  when  to  be  served,  554. 

what  sufficient,  557,  559. 

when  unnecessary,  561. 

service  of,  may  be  proved  by  affidavit,  App. 

PRODUCTION, 

of  documents,  by  third  person,  how  enforced,  110-113. 
when  essential  to  proof  of,  449. 
where  impossible,  540. 

cannot  be  evaded  by  transfer  after  notice,  553. 
by  party,  how  enforced  to  inspect,  and  stamp,  App. 


926  INDEX. 

PROOF, 

definition  of,  12. 

on  wliom  incumbent,  585. 

general  division  of,  584. 

partial,  626. 

order  of,  605. 

to  be  confined  to  the  issue,  617.     See  tit.  Evidence. 

PROTECTION  OF  WITNESS, 
from  arrest,  113. 
from  self-crimination,  41,  204.     See  tit.  Wihiess. 

PROTESTATION, 

in  pleading,  effect  of,  451. 
PUBLIC  ACTS, 

of  the  crown,  admissibility  of,  283. 

of  parliament,  judicially  noticed,  274.     See  tit.  Acts  of  Parliament. 

PUBLIC  DOCUMENTS, 

kinds  of,  255-316. 

proof  of,  296-316. 

Stat.  8  &  9  Vict.  c.  113,  296.     See  tit.  Instruments  of  Evidence. 
PUBLIC  HISTORIES, 

admissibility  of,  97,  314. 
QUAKERS, 

affirmation  by,  32. 

QUALITY  OF  EVIDENCE, 

general  rule  that  the  best  must  be  adduced,  641. 
nature  of  the  rule,  643. 
when  it  applies,  644. 
exceptions  to  it,  647. 
QUANTITY  OF  EVIDENCE, 

observations  on,  733.     See  tit.  Evidence. 
QUEEN'S  BENCH, 

books  in  prison  of,  308. 

in  master's  office  of,  309. 

QUEEN'S  CASE,  THE, 

references  to,  216,  232,  238. 

QUO  WARRANTO. 

eff'ect  of  judgment  upon,  384. 
RATES, 

copies  of,  where  to  be  kept,  304. 
READING, 

of  documents,  rules  as  to,  579,  583, 

REASONABLE  TIME, 

whether  question  of  law  or  fact,  768. 
instances,  768-776. 
RECITAL, 

of  facts,  observations  on,  91. 
in  Act  of  Parliament,  when  evidence,  278. 
in  deed,  effect  of,  577. 
of  authority  in  instrument,  eff'ect  of,  583. 
RECORD, 

admissibility  of,  97. 
proof  of,  257. 

by  production,  ib. 

by  exem])lification,  ib. 

\\y  copy  by  .authorized  officer,  ib. 

by  office  or  examined  copy,  ib. 

liow  proved  when  lost,  271. 

when  conclusive,  98. 

when  it  operates  as  an  estoppel,  365. 


INDEX.  927 

RECORD— Continued. 

how  impeached,  400. 

necessity  for,  625.     See  tit.  Instruments  of  Evidence. 

RECORD  OFFICE, 

established  under  1  &  2  Vict.  c.  94,  255. 

copies  under  seal  of,  admissible,  256  n.,  263  n. 
RECTOR, 

entry  by,  of  receipt  of  tithes,  admissibility  of,  476. 

REDUNDANCY, 

of  proof,  effect  of,  632.     See  tit.  Evidence. 

RE-EXAMINATION, 

of  witness,  230. 

what  questions  may  be  asked  on,  231-236.     See  tit.  Witness. 
REFRESHING  MEMORY, 

means  allowable  for,  177-184.     See  tit.  Memory — Slemoranduvi. 

REGISTERS, 

public,  are  evidence,  296. 

of  births,  marriages,  &c.,  297. 

Stat.  3  &  4  Vict.  c.  92,  300. 

what  evidence  of,  under  the  statute,  301. 
of  foreign  marriages,  300. 

Stat.  12  &  13  Vict.  c.  68,  302. 
of  Fleet  Prison,  299. 
of  dissenting  congregation,  300. 
not  evidence  of  identity,  299. 

nor  of  marriage,  ib. 
of  place  of  birth,  when,  ib. 
entry  in,  how  proved,  302. 
of  a  bishop,  309. 
of  parish,  303. 
of  navy  office,  305. 
of  ship,  310. 
proof  of,  by  copy,  269. 
declaration  of  loss  of,  admissibility  of,  535.  See  tit.  Birth — Burial — Marriage,  ^-c. 

REMOVAL,  &c.,  ORDERS  OF, 

conclusive  as  to  facts  stated,  383. 

REPLEVIN, 

wife  of  landlord  in,  when  admissible,  133.     See  Interest. 
REPLY, 

evidence  in,  608. 

right  to,  609. 
REPOSITORY, 

of  ancient  instruments,  proof  as  to,  291,  524.     See  Ancient  Instruments. 
REPRISALS, 

proof  of  proclamation  for,  279. 

REPUTATION, 

general  principles  of  admissibility  of  evidence  of,  43,  191. 
on  what  questions  admissible,  47,  186. 

character,  44,  75. 

pedigree,  45,  62,  n.,  188,  190. 

rights  of  common,  48,  187. 

boundary,  49,  186. 

modus,  49. 

customary  rights,  187,  386. 

tithes,  tolls,  <fec.,  188. 

highways,  188. 
essentials  to  its  reception,  ib. 
facts  to  be  proved  must  be  of  public  nature,  47. 

must  be  general,  49. 

must  be  supported  by  proof  of  enjoyment,  50. 


928  INDEX. 

REPUTATION— Continued. 

inadmissible  to  prove  a  private  prescription,  48. 
deposited  wlien  admissible  as,  422.     See  tit.  Hearsay. 

REPUTED  OWNERSHIP, 

rather  a  question  of  fact  than  of  law,  780. 

RES  GEST^, 

in  general  evidence  for  jury,  78. 

admissibility  of  declarations  and  acts  as  part  of,  89.     See  tit.  Evidence. 

RES  INTER  ALIOS  ACT.E, 

evidence  of,  inadmissible,  36. 
principles  of  the  rule,  81. 

effect  of  the  rule,  81,  85. 
does  not  exclude  admissions  or  acts  of  party,  85. 

nor  entry  by  dead  party  against  his  interest,  64,  474. 
nor  operations  of  general  laws  nor  customs,  ib. 
nor  facts  which  have  a  legal  operation  on  the  question,  ib. 
nor  memoranda  nor  declaration  which  on  other  grounds  are  evidence,  86. 
when  admissible,  as  evidence  of  reputation,  ib. 
as  part  of  the  res  gestm,  ib. 
as  collateral  facts,  90. 
judgment  on  quo  warranto,  when  evidence,  384.     See  tit.  Evidence. 
RETURN, 

by  sheriff,  effect  of,  437. 
RIGHT, 

legal  acceptance  of  the  term,  I,  n. 
popular  acceptation  of  it,  ib. 
RIGHT  TO  BEGIN, 

rules  as  to,  595,  605. 
ROMAN  LAW, 

provisions  of,  as  to  pleading,  4,  5. 
RULES  OF  COURT, 

admissibility  of,  449. 
SCOTLAND, 

effect  of  judgment  in  courts  of,  346,  402. 

SEAL, 

exemplifications  under,  proof  by,  258. 
of  public  corporate  body,  proof  of,  457. 
admission  under,  effect  of,  459. 
to  deed,  proof  of,  509. 
of  what,  judicial  notice  is  taken,  739. 
of  what,  not,  740. 
SEAMAN, 

death  of,  proof  of,  305. 

attendance  of,  as  witness,  how  procured,  105. 

SEARCH, 

for  lost  instrument,  evidence  of,  531-540. 

SECONDARY  EVIDENCE, 

princlijle  of  admissibility,  53. 

of  exclusion,  39,  56. 
no  degrees  of,  544. 
when  admissih)le,  61. 

dejjositions,  ib. 

traditionary  evidence,  62. 

declarations  and  entries,  64. 

entries  by  strangers,  463. 

presumptions,  70. 

circumstantial  evidence,  77,80. 

hearsay,  185,  191. 

reputation,  180. 
of  written  instruments,  542. 


INDEX.  929 

SECONDARY  EYWENGE— Continued. 

of  lost  instruments,  545. 

of  a  deed,  examined  copy  of  a  registry  by,  ib.,  n. 

of  endowments,  by  chartulary  of  an  abbey,  546,  549. 

of  modus,  549. 

of  grant,  ib. 

of  will,  by  copy  from  prerogative  office,  547. 

of  settlement,  by  old  attested  copy,  ib. 

of  manorial  customs,  by  copy  of  old  decree,  ib. 

of  letter,  by  entry  in  clerk's  letter-book,  ib. 

of  license  from  the  Crown,  by  Secretary  of  State's  registry,  ib. 

of  marriage  articles,  by  recitals  in  case  submitted  to  counsel,  550. 

of  grant,  by  ancient  parchment  produced  by  adversary,  ib. 

of  assignment  before  entered  of  record,  ib. 

of  instruments  in  possession  of  adversary,  551-571. 

or  persons  in  privity  with  him,  553. 

after  notice  to  produce,  554.     See  tit.  Notice  to  Produce. 
of  instruments,  by  admissions,  571. 

by  enrolment,  573. 

by  recital,  577. 
how  it  differs  from  defective,  731.     See  tit.  Evidence — Instruments  of  Evidence. 

SECRETARY, 

of  State,  book  of,  provable  by  copy,  270. 

of  bankrupts,  book  of,  admissibility  of,  310. 
SENSE, 

of  written  instruments  not  to  be  altered  by  parol  evidence,  463.     See  tit.  Parol 
Evidence. 
SENTENCE, 

of  expulsion  from  college,  proof  of,  371. 

of  deprivation  by  visitor,  ib. 

of  Spiritual  Courts,  admissibility  and  effect  of,  373,  393,  417. 

SEPARATE  EXAMINATION, 

of  witnesses,  when  allowed,  199.     See  tit.  Witness. 
SESSIONS, 

orders  of,  effect  and  proof  of,  383. 
SHERIFF, 

return  by,  effect  of,  437. 
SHIP, 

registry  of,  when  evidence,  310. 

books  of,  305,  310. 
SIGN  MANUAL, 

of  king,  certificate  under,  293,  294. 

noticed  judicially,  740. 
SKILL  AND  JUDGMENT, 

evidence  on  questions  of,  96,  173.     See  tit.  Evidence — Witness. 

SPECIAL  PLEADINGS, 

object  of,  2,  3. 

admissibility  of,  449. 

admissions  in,  450,  639. 
SPECIAL  VERDICT, 

conclusive  as  to  facts  of  the  case,  11. 

should  find  facts,  not  evidence  merely,  765. 
SPIRITUAL  COURT, 

jurisdiction  of,  37. 

sentences  of,  admissibility  of  and  eflfect  of,  373,  393. 

depositions  taken  in,  417. 
STAGE  COACH, 

proof  of  ownership  of,  311. 
STAMP, 

proper,  essential  to  admissibility  of  instruments,  503. 


930  INDEX. 

STATE,  ACTS  OF, 

proof  of,  2V9,  281. 
STATUTE, 

public,  requires  no  proof,  274. 

private,  must  be  proved,  276. 

copy  by  Queen's  printer  to  be  judicially  noticed,  278. 

recital  in,  effect  of,  ib.     See  tit.  Act  of  Parliament. 
STATUTES, 

6  &  7  Vict.,  c.  85,  25,  125,  App. 

14  &  15  Vict.,  c.  99,  26,  135,  App. 

15  &  16  Vict.,  c.  76,  s.  117,  118,  119,  222,  App. 
STEWARD, 

entries  by,  against  his  interest,  admissibility  of,   65,  474,   479,  481.     See  tit. 
Entries. 
STRANGERS, 

declarations  by,  excluded,  81,  463. 
acts  of,  excluded,  82. 

effect  of  the  rule,  84.     See  tit.  Res  inter  alios  actse. 
SUBPffiNA, 

writ  of  103.     See  tit.  Witness. 
SUBPCENA  DUCES  TECUM, 
writ  of,  110. 

what  must  be  produced  under,  ib. 
witness  not  compelled  to  produce  documents  which  may  criminate  him.  111. 

nor  title  deeds  to  his  estate,  ib. 
attorney  not  to  produce  client's  title  deeds,  ib. 
witness  bound  in  other  cases  to  produce  writing,  112. 

duty  of,  to  be  prepared  with,  ib. 
obligation  to  produce,  is  matter  of  law,  ib. 

disobedience  of,  does  not  warrant  reception  of  secondary  evidence,  ib. 
except  in  cases  of  fraud,  113.     See  tit.   Witness. 
SUBSTANCE  AND  LEGAL  EFFECT, 

proof  according  to,  when  sufficient,  642. 

SUMMONS, 

essential  to  justify  conviction,  402. 
SUMS, 

variance  in,  effect  of,  630. 
SURETY, 

evidence  for,  in  action  against,  321,  n. 

endorsement  by  deceased  payee  of  promissory  note  of  payment  by  one  of  the 
makers,  admissible  against  surety,  476. 

entries  by  banker's  clerk  in   books  kept  by  him,  admissible   after  his   death 
against  his  surety,  481. 
SURGEON, 

not  allowed  to  withhold  confidential  communication  by  patient,  40. 

SUPERIOR  COURTS, 

seals  of,  noticed  judicially,  739. 
SURPLUSAGE, 

rule  as  to,  531,  626.     See  tit.  Evidence. 
SURVEY  AND  MAPS, 

proof  by,  284  288. 

ancient,  taken  under  authority,  ib. 

Domesday  book,  284. 

of  the  ports,  285. 

valor  benejlciorum,  ib. 

survey  stat.  21  Hen.  VIIL,  285. 

from  first  fruits'  office,  285,  286. 

by  order  of  House  of  Commons,  286. 

iri()iiisitions  by,  as  to  fees,  287. 

under  public  commission,  ib. 

ancient  extents  of  crown  land,  ib. 


INDEX.  931 

SURVEYS  AND  UAVS. —Continued. 
of  crown  and  church  land,  ib. 
private,  of  estates,  when  admissible,  472. 
of  manor,  473. 

TENANT, 

declaration  by,  admissibility  of,  65,  487-492. 

TERRIERS, 

admissibility  of,  to  prove  old  tenures,  and  boundaries,  289. 

proof  of,  ih. 

as  to  place  of  deposit,  291. 

ecclesiastical,  admissibility  of,  to  prove  possessions  of  the  church,  290,  283. 

effect  of,  in  evidence,  291. 

TESTATOR, 

intention  of,  parol  evidence  of,  not  admissible  to  vary  terms  of  will,  667. 

TESTIMONY, 

degrees  of,  21,  817. 

force  of,  832. 

positive  and  negative,  867. 

rejection  of,  873. 

bill  to  perpetuate,  427. 

character  of,  831. 

credibility  of,  838,  n.     See  tit.  Evidence. 

TESTS, 

of  the  admissibility  of  evidence,  18. 
excluding,  necessity  for,  ib. 

TIME, 

allegation  of,  effect  of  variance  from,  625,  630. 
presumption  from  lapse  of,  742,  760. 

TITHES, 

evidence  of  modus,  49. 

by  terriers,  in  suits  for,  281,  293. 
decree  for,  proof  by  copy,  272. 
entry  by  deceased  rector  of  receipt  of,  476. 

TITLE  DEEDS, 

admissibility  of,  in  evidence,  472. 
person  not  compelled  to  produce  his.  111. 
attorney  not  to  produce  title  deeds  of  client,  ib. 

TORT, 

right  to  begin  in  action  of,  598. 

TORTURE, 

not  resorted  to  by  the  Anglo-Saxons,  13. 
allowed  by  the  Roman  law,  41. 

TRADITIONARY  EVIDENCE, 
when  admissible,  49,  62,  190. 

must  be  derived  from  persons  likely  to  know  the  facts,  62. 
must  be  free  from  suspicion,  ib. 
when  it  must  be  supported  by  enjoyment,  50,  63.     See  tit.  Hearsay. 

TRIAL, 

mode  of,  4. 

postponement  of,  in  absence  of  material  witness,  109. 

in  order  that  the  child  may  be  instructed,  117. 
order  of  proof  at,  595. 

TRIAL  BY  JURY, 

origin  of,  5,  8. 

advantages  of,  6-10. 

observations  on,  811.     See  tit.  Jury. 


932  INDEX. 

TRUTH, 

tests  of,  13,  14. 

natural  and  artificial,  15. 
obligations  of  oath,  22. 
cross-examination,  34. 
UNBELIEF, 

of  witness,  how  far  ground  of  exclusion,  113. 

UNIVERSITY, 

public  books  of,  proof  by,  270. 
VALOR  BENEFICIORUM, 

admissibility  of,  in  evidence,  285. 

efifect  of,  ib. 
VARIANCE, 

general  principles  respecting,  624. 

inferences  from  them,  631. 

surplusage,  626. 

cumulative  allegations,  ib. 

partial  proof,  626,  627. 
as  to  damage,  number,  magnitude,  extent,  &c.,  ib. 

redundant  evidence,  631. 

descriptive  allegations  not  divisible,  628,  630. 
when  descriptive,  ib. 

reconcilement  of  variances  by  amendment,  632. 
statutes  relating  to  amendment  of,  633-637.     App. 
in  testimony,  effect  of,  830. 

VERDICT, 

what  is  essential  to,  10. 

not  conclusive  in  general  as  to  truth  of  facts,  98. 
in  civil  proceeding,  whether  evidence  in  criminal,  332. 
in  criminal  cases,  when  admissible,  361. 
between  private  parties,  333. 
in  personal  action,  when  a  bar,  ib. 
how  proved,  388. 

party  cannot  show  that  it  was  entered  by  mistake,  403. 
compounded  of  law  and  fact,  584. 

special,  must  find  facts,  not  evidence  merely,  765.     See  tit.  Instruments  of  Evi- 
dence— Judgments. 

VISITOR, 

sentence  by,  proof  and  effect  of,  371. 
VOIRE  DIRE, 

examination  on,  of  witaess,  157,  160.     See  tit.  Witness. 

WAR, 

evidence  of,  war,  what,  279,  n. 

WARRANT, 

admissibility  of,  in  evidence,  435. 
recital  of  authority  in,  effect  of,  583. 
WIFE, 

cannot  be  witness  for  or  against  her  husband,  39,  138,  494,  512,  n. 
unless  a  party  to  the  suit,  142,  App. 
except  in  the  County  Courts,  39,  139. 

cannot  be  a  witness  for  or  against  her  husband  in  criminal  case,  39,  141, 
App. 
how  far   admissible  for   a  person  indicted   with  her  husband,  139.     See  fit. 
Husband  and  Wife — Interest. 
WITNESS, 

attendance  of,  how  enforced,  103. 

in  i)rocecdings  before  justices,  107. 

at  sessions,  ib. 

Stat.  11  &  12  Vict.  c.  42,  ib. 

in  bankruptcy,  108. 


I 


INDEX.  933 

WITNESS— Con?2WMcc?. 

insolvency,  108. 

County  Courts,  ib. 

courts  martial,  109. 

arbitration,  ib. 

inclosure,  &c.,  commissioners,  ib. 

by  subprena,  103. 
expenses  of,  ib. 
liability  of,  for  neglecting  to  attend,  103. 

on  attacliment,  104. 

on  action,  ib. 
process  when  in  custody,  ib. 

or  under  restraint,  ib. 
habeas  corpun  ad  testificandum,  104. 
in  criminal  cases,  105. 
binding  by  recognizance,  ib. 

Stat.  11  &  12  Vict.  c.  42,  ib. 

by  coroner,  ib. 
in  case  of  a  feme  covert,  ib. 

■when  residing  in  ditterent  part  of  the  kingdom,  ib. 
for  defendants  and  prisoners,  lOG. 
such  witnesses  to  be  sworn,  33. 

course  of  proceeding  where  attendance  of,  cannot  be  procured,  109. 
where  witness  resides,  or  is  going  abroad,  or  is  ill,  110. 
attesting.,  when  he  must  be  called,  503. 

if  not  to  be  found,  512. 
subpoena  duces  tecum,  writ  of,  ib.     See  tit.  Subpoena  duces  tecum. 

effect  of,  110-112. 

disobedience  to,  does  not  warrant  reception  of  secondary  evidence,  112. 
obligation  of,  to  be  sworn,  113. 

to  answer  questions,  ib. 

protection  of,  to  what  cases  extended,  ib. 
objections  to  competency  o£,  ib. 

when  to  be  taken,  ib. 
for  want  of  religious  belief,  116. 

in  the  case  of  children,  117. 

infamy  of  character,  ib. 

from  interest,  118.     See  tit.  Interest. 

Stat.  3  &  4  Will.  IV.  c.  22,  122-124. 

Stat.  6  &  7  Vict.  c.  85,  125-129,  App. 

Stat.  14  &  16  Vict.  c.  99,  140,  App. 

in  cases  of  adultery  and  breach  of  promise,  141. 

privilege  of,  as  to  matters  of  professional  confidence,  40,  184. 

of  political  confidence,  41,  191. 
examination  of,  in  chief,  how  conducted,  166. 

may  be  examined  apart,  199. 

leading  questions,  rule  as  to,  166,  199. 

what  are  leading  questions,  and  when  allowed,  166-172. 
as  to  what  examinable,  172. 

knowledge,  belief,  judgment,  &c.,  96,  173. 

hearsay,  rejiutation,  &c.,  185-191. 
may  refresh  his  memory,  177-184.     See  tit.  Memory. 
cross-examination  of,  194. 

one  great  test  of  truth,  195. 
-  who  may  be  cross-examined,  196. 

practice  as  to,  196-198. 

as  to  collateral  facts,  200,  203. 

with  a  view  to  discredit,  207,  236. 
bound  to  answer  questions,  although  they  may  subject  him  to  civil  responsi- 
bility, 203. 

but  not  when  they  may  subject  him  to  penalties,  204. 

nor  to  criminate  himself,  41,  140,  204. 
whether  bound  to  answer  questions  which  tend  to  his  disgrace,  206-213. 

where  he  refuses  to  answer,  240. 


934  INDEX. 

WITNESS— Continued. 

consequences  of  his  answering  such  questions,  214. 
as  to  contents  of  writing,  198,  216-220. 

whether  allowable  as  a  test  of  credit  of  witness,  220-228. 

time  for  reading  writing  for  that  purpose,  ib. 
as  to  depositions,  in  criminal  cases,  229. 
contradiction  of,  by  contrary  evidence,  213-215. 
re-examination  of,  230. 

as  to  conversation  with  a  party,  232. 

with  a  third  person,  ib. 
re-calling,  when  allowed,  23G. 
credit  of,  how  to  be  impeached  by  other  witnesses,  236,  244-251. 

by  general  evidence  only,  237. 

proper  question  for  the  purpose,  ib. 

by  proof  of  what  he  has  said  or  done,  238. 

former  statement,  liow  proved,  241. 

opportunity  for  explanation,  239. 
conviction  against  a  party,  no  evidence  of  testimony  set  forth,  243. 
offer  of  bribe  to,  admissibility  of  evidence  of,  ib. 
conspiracy  by,  to  deprive  party  of  means  of  defence,  proof  of,  244. 
a  party  cannot  discredit  his  own  witness,  244. 

exceptions  to  the  rule,  ib. 
credit  of  may  be  supported  and  testimony  of,  confirmed,  252,  253. 
examination  of,  on  interrogatories,  433. 
bill  to  perpetuate  testimony  of,  427. 
integrity  of,  820. 
manner  and  demeanor  of,  822. 
ability  of,  823. 
number  of,  827. 
consistency  of,  828. 
inconsistency  of,  829. 

increase  of  credibility  by  number  of,  828,  832. 
effect  of  conformity  of  testimony  of  witnesses,  with  experience,  832. 

with  collateral  circumstances,  838. 

WRIT, 

when  admissible  as  evidence,  435. 

effect  of,  ib. 
proof  of,  437. 

when  essential  to  prove  judgment,  436. 
proof  of,  when  returned,  437. 
proof  of,  when  not  returned,  438. 
endorsements  on,  effect  of,  437.     See  tit.  Instniments  of  Evidence. 

WRIT  OF  EXECUTION, 

not  proof  of  judgment,  437. 

WRITINGS, 

cross-examination  of  witness  as  to,  198,  216-220.     See  tit.  Witness. 

WRITTEN  INSTRUMENTS, 
different  kinds  of,  255. 

of  a  public,  private,  or  mixed  nature,  ib. 

judicial  or  not  judicial,  256. 

of  record  or  not  of  record,  ib. 
Public  Documents. 

how  procured  and  proved,  256,  315. 
records,  proof  of ,  of  the  same  court  is  by  production,  ib. 

of  another  court,  by  certiorari  and  mittimus,  267. 

of  inferior  court,  by  certiorari,  ib. 

in  criminal  cases,  ib. 

may  be  proved  by  exemplifications,  257-259. 

authorized  copies,  260. 

sworn  copies,  261,271. 
copy  never  admissible  wlien  the  original  is  produced,  271. 
lost  record,  how  jiroved,  ib. 


I 


INDEX.  935 

WRITTRX  INSTRUMENTS— Co«//wM€f/. 

not  judicial,  grounds  of  admissibility,  272,  273. 
Acts  of  Parliament,  ib. 

public,  require  uo  proof,  274. 

private  proved  by  copy  ])urportin<T  to  be  jirinted  by  tlie  Queen's  printers,  277. 
where  printed  copy  of  act  incorrect,  court  will  be  <ruidedby  the  parliament  roll,  (6. 
recital  in  Acts  of  Parliament  of  facts,  when  evidence  of  such  facts,  278. 
acts  of  state  approved  by  tlie  Gazette,  271).     See  tit.  Gazette. 
foreign  acts  of  state,  proof  of,  281. 

public  documents,  printed  by  the  Queen's  printers,  when  evidence,  281. 
journals  of  Houses  of  Parliaments,  how  far  evidence,  ib. 

copies  of,  by  the  Queen's  printers,  282. 
writ  of  summons  to  a  peer,  proof  of,  by  enrolment,  ib. 

public  acts  of  the  Crown,  affecting  its  revenues  or  possessions,  evidence  of,  283. 
ancient  surveys  under  authority,  284.     See  tit.  Surveys. 
inquisitions,  288. 
terriers,  &c.,  289. 
public  licenses  and  grants,  293. 
certificates  by  persons  in  authority,  294. 
public  registers,  290. 
parish   books,  303. 

books  and  documents  of  public  officers,  305. 
court  rolls,  308. 
poll  bonks,  ib. 
prison  books,  ib. 
bank  of  England  books,  309. 
books  in  Master's  office,  ib. 
bishop's  register,  ib. 
corporation  books,  ib. 
Chancellor's  book,  310. 
books  of  clerk  of  the  peace,  ib. 
ship's  register,  ib. 

stage  and  hackney  coach  entries,  311. 
books  in  Herald's  office,  ib. 
armorial  bearings,  312. 
duchy  book,  ib. 
commissioners'  books,  313. 
land  tax  books,  ib. 
public  histories  and  chronicles,  314. 

Judicial  Docdments.     See  tit.  Judgments. 

judgments,  decrees,  and  verdicts,  316-404.  ^ 
inquisitions,  depositions,  and  examinations,  404-435. 
writs,  warrants,  pleadings,  &c.,  435-451. 

Mixed  Documents. 

books  of  public  companies,  452,  456. 

Court  rolls,  ib. 

corporation  books,  452,  456. 

Private  Docu.ments. 

admissibility  of,  458. 

when  offered  against  person  who  was  party  or  privy  to  them,  ib. 

operate  as  admissions,  459. 
effect  of  seal,  ib. 
operation  of,  as  estoppel,  ib. 
deed  poll  does  not  estop  lessee  or  grantee,  461, 
privies  are  bcSund  by  estoppel,  462. 
title  deeds,  412. 
entries  by  third  persons,  463. 

when  admissible,  464. 

accompanying  acts,  466. 

against  interest  of  party,  474. 

by  stewards,  receivers,  &c.,  479. 

by  deceased  tenants.  487. 


936  INDEX. 

WRITTEN  INSTRUMENTS— Co«imM«rf. 

bj^  persons  in  the  course  of  business,  492. 

by  attorneys,  4'J5. 
proof  of  private  documents,  498. 

production,  499. 

erasure,  500. 

stamp,  enrolment,  &c.,  503. 

legal  requisites,  ib. 

by  attesting  witness,  504. 

of  sealing  of  deed,  508. 

of  delivery,  509. 
on  denial  by  attesting  witness,  510. 
absence  of  attesting  witness,  512. 

secondary  proof  of,  in  absence  of  attesting  witnesses,  519. 
proof  of,  when  thirtj'  years  old,  521. 

custody  of  ancient  documents,  524. 
where  no  attesting  witnesses,  529. 

where  instrument  is  lost,  530. 

evidence  of  search,  532. 

by  secondary  evidence,  542. 

by  counterpart,  543. 

by  copy,  544. 
proof  of,  when  in  possession  of  the  adversary  or  privy,  550,  553. 

proof  of  possession  of.  by  him,  ib. 

presumptive  evidence  of  such  possession  of,  551. 

question  of  such  possession,  solely  for  the  judge,  554. 
notice  to  produce,  proof  of,  ib. 

on  whom,  and  when  to  be  served,  555. 

if  both  written  and  oral,  have  been  given,  proof  of  either  sufficient,  557. 

what  sufficient,  559. 

when  unnecessary,  561. 
proof  of,  coming  from  adversary's  possession,  565. 
proof  of,  when  adversary  does  not  produce  it,  568. 
admission  of,  under  judge's  order,  571. 
notices  to  admit,  when  to  be  given,  App. 
consequences  of  refusing  to  admit,  ib. 
proof  of,  by  enrolment,  573. 

by  recital  in  deed,  577. 
intrinsic  objection  to,  not  available,  578. 
the  whole  of,  when  to  be  read,  597. 

and  of  document  referred  to  in  it,  580. 

if  necessary  to  show  its  true  nature,  582. 
credit  due  to  whole  or  part  of,  to  be  judged  of  by  jury,  583. 
sense  of,  not  to  be  varied  by  parol  evidence,  463,  648. 
when  conclusive  evidence,  717. 

when  not  conclusive,  772. 
eifect  of,  as  to  strangers,  725-728. 
construction  of,  matter  of  law,  786. 


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